proximate or direct and damages remote or indirect, admitting the force and the validity of the distinction.

Whether too re

tion to be determin

But we took care to state at the same time that the distinction is altogether uncertain, not to say, in many cases, shadowy; mote for considera- that the dividing line can no more be drawn in the abstract ed by the tribunal. than the line between the contiguous colors of the spectrum; and that in private controversies the attempt to make the discrimination generally results in a question of fact for the determination. of the competent tribunal.

The idea is well expressed by Mr. Pradier Fodéré, as follows:

dier Fodere.

Mais l'élévation des primes d'assurance amenée par les déprédations certaines et répétées de corsaires, mais la prolongation de la guerre due aux succès Views of M. Pra de ces derniers, pourraient être, sans trop forcer l'appréciation, considérées comme des suites prochaines, et, sinon nécessaires et uniques, du moins naturelles, de la faute du neutre. Il y a là, du reste, une série de considérations à peser, à étudier. La règle absolue, c'est qu'on ne peut équitablement et raisonnablement imposer la responsabilité des dommages indirects. Mais étant donnés tels dommages causés et éprouvés, quels d'entre eux sont directs, quels sont indirects? On ne peut pas le dire d'avance: c'est une question à examiner, en descendant dans les détails et en discutant les causes de chaque dommage.

What M. Pradier Fodéré says in this respect is fully justified by all the special discussions of the question in the jurisprudence of Great Britain and the United States, as well as of other countries of Europe and America. The well-considered treatise of Mr. Mayne, and the still ampler and more complete treatise of Mr. Sedgwick, contain abundant proof on this point.

The Counter Case of the British Government exhibits an apt illustration of this point, in arguing that even the claims for property actually destroyed by the Alabama are indirect claims, and therefore to be rejected by the Tribunal. It is not worth while to add to what we have already said on that argument. We suppose it assumes that negligence is the cause and escape the direct effect, so that the captures are the indirect effect; which is equivalent to saying that he who by malice or gross negligence discharges a loaded gun into a crowd is not responsible for the deaths or wounds he inflicts, because the injury done is the effect of the action of the ball, which is a secondary cause, and not of the act of negligence or malice which did but apply a match to the gun. The Counsel of the United States would not need to have recourse to General considera- any such subtleties to show that the acts of the Confederate cruisers inflicted an injury on the United States in contributing to the prolongation of the war, and that such injury was a direct injury of Government to Government. Nor would it be any answer to say that this injury was but a contributing fact among other and even greater causes of the damage.

tions.

Nor would it suffice to reply that the exact amount of the damage is difficult to fix. When a traveler is injured by reason of want of due diligence on the part of the managers of a railroad, it is no defense to say that it is difficult to fix the true value of his arm or his leg, or the money compensation of a long fit of sickness. That is a problem, like others of the same nature, which finds its solution every day in the ordinary courts of justice of all countries.

One nation invades another, and inflicts losses by acts of war on land. If they choose to make peace on the condition of the invader indemnifying the losses of the invaded, the sum which ought to be paid is debatable; but certainly it can be determined. So if two co-operating nations invade another, the sum of injury done by one of them as dis

1 Pradier Fodéré, La question de l'Alabama, p. 37.

tinguished from the other is determinable, if not with exactness, yet approximately, like most other unliquidated damages; to say nothing of the question of exemplary damages in the cases of tort, which run together in the discretion and conscience of the competent tribunal.

But there is war on sea as well as on land. A war may be exclusively maritime, like that between France and the United States. Such a war consists in the combat or capture of ships. Yet such a war inflicts national injuries and losses independent of the value of vessels destroyed, and if terminated by the payment of indemnities for the cost of the war, either by one or by several parties belligerent, the sum of the reparation can be calculated and determined.

Such is the relative predicament of Great Britain and the United States. We have been injured as a nation by acts of a maritime war happening, as the Counsel think they have proved, by the culpable and responsible negligence of the British Government. The wrong is direct as between the two nations.

We think we have distinct right of substantial indemnity in this behalf.

When a nation inflicts a wrong on a nation, is it due reparation to pay the price of certain ships destroyed? Surely not, any more than the fine paid by the wealthy Roman to repair the insults he inflicted on every person he met in the forum.

damages.

But considerations of large import in the sphere of international relations, of which the Government of the United States is United States do the rightful judge, forbid their Counsel to press for extreme not desire extreme damages on account of the national injury thus suffered by the nation itself, through the negligence of Great Britain. Nevertheless, holding that in view, we have maintained in this Argument the plentitude of the jurisdiction of the Tribunal, because, in the judgment of the United States, such is the tenor and intent of the The jurisdiction of Treaty of Washington; and because they desire the judg- the question belongs ment of the Tribunal on this particular question, for their own guidance in their future relations with Great Britain. They contend that the question of damages, as whether direct or indirect, is a juridical one, not one of the Treaty.

to the Tribunal.

The United States did not insist on the absolute generality of scope which distinguishes the Treaty, with unreasonable expectations of having extravagant damages awarded by the Tribunal. Their object was a higher one, and one more important to them, and, as they conceived, to Great Britain.

It is not for their interest to exaggerate the responsibilities of neutrals; but only, in the sense of their action in this respect throughout their whole national life-time, to restrain the field of arms and enlarge that of peace, by establishing the rights and the duties of neutrality on a basis of truth and justice, beneficial in the long run to all nations. If, as a juridical question under this Treaty, the Tribunal shall conclude that Great Britain is not bound to make reparation to the United States for general national injuries occasioned by the negligence of the British Government to fulfill neutral obligations in the matter of Confederate cruisers, it will say so; and, in like manner, if, as a juridical question, under the Treaty, the Tribunal shall conclude to the contrary and award damages in the premises, the United States will accept the decision as a final determination of the fact and the public law of the questions arising under the Treaty.

The United States desired that the Treaty should be a full and final

Without an adjuthere will not be a

differences.

settlement of all differences between the two nations, which dication upon it it would not have been if the larger national claims, so long full settlement of all and so steadily insisted on by us, had been excluded from the scope of the Treaty, and so left to be a recurring subject of grief and offense in the minds of the people of the United States. They desired also that great principles of neutral obligations and neutral duty should issue from this High International Tribunal, representing five great Constitutional Nations, to serve as instruction and example to all nations, in the large interests of civilization, of humanity, and of peace.

We, the Counsel of the United States, have acted accordingly, in the advocacy of the rights of the United States; earnestly and positively maintaining the principles involved in this Arbitration, but regarding the mere question of the amount of national damages to be awarded as secondary to the higher consideration of the welfare and the honor of the United States.

Conclusion.

We now bring to a close this Argument on behalf of the United States, "showing the points and referring to the evidence" which we think should lead to an award by the Tribunal of reparation and indemnity from Great Britain, commensurate with the injuries the United States have suffered and the redress they are entitled to demand.

We shall not find in recent history any example of two powerful nations, with so weighty a matter of difference between them, submitting the measure of right and wrong, of injury and redress, in the great controversy, to any intermediary arbitrament. When their own reason and justice did not enable them to concur in accepting a fit solution of the grave dispute it has too often been left to work ill-will and estrangement between them, or led to open rupture of their peace.

The benevolent and sagacious counsels of the two governments have triumphed over the obstacles and resisted the dissuasions which have heretofore proved too strong to be overcome, and the success of this great example, so full of promise of peace and justice among nations, now rests with the Tribunal.

In the wise administration of this elevated and benign trust, for the welfare of the world confided to this august Tribunal, the Arbitrators will find no surer guide or support than a consideration of the ill consequences which would follow from a disappointment of the high hopes which, on all sides, attend this great experiment.

So far as the parties to this controversy are concerned, they are equally interested that the award should receive the moral acceptance of the people of both nations, as an adequate and plenary settlement of the matter of difference between them.

The people of the United States have definitely formed their opinions as to what the action of Her Majesty's Government, now under judgment, was, as matter of fact, and as to the magnitude and permanence of the injuries which they, their property, and their prosperity, have suffered therefrom. They naturally look, therefore, with chief interest to the award of this Tribunal as a decision upon the question of the rightfulness of such action of Her Majesty's Government, and by consequence of the rightfulness of such action in the future, should occasion arise for its imitation by the United States or other Powers.

This principal question having been determined, if Great Britain is held responsible for these injuries, the people of the United States expect a just and reasonable measure of compensation for the injuries

as thus adjudicated, in the sense that belongs to this question of compensation, as one between nation and nation.

The disposition of this controversy by the Tribunal upon principles adequate to its profound interest to the Parties, and in the observant eyes of other nations, gives the best hope to the civilized world of a more general adoption of the arbitrament of reason, instead of force, in the disputes of nations.

And for the rest, the permanent and immutable principles of JUSTICE are adequate for this, as for every other, situation of human affairs for this, as for every other, Tribunal instituted in its name and for its maintenance. Justice-universal, immutable Justice-is wholly indestructible by the changing fortunes of States or by the influence of all-devouring time,

Casibus haec nullis, nullo delebilis aevo.

In this spirit we humbly submit the whole subject to the enlightened judgment of the Tribunal.

C. CUSHING.
Wм. M. EVARTS.
M. R. WAITE.

15 C

APPENDIX.

NOTE A.-OBSERVATIONS ON CERTAIN SPECIAL CRITICISMS IN THE BRITISH COUNTER CASE ON THE CASE OF THE UNITED STATES.

I. THE BRITISH FOREIGN ENLISTMENT ACTS.

* *

On the eighth page of the British Counter Case it is said: "The following sentence is given as a quotation from a dispatch signed by Earl Russell: 'That the British Foreign En- Foreign Enlistment Act, which was intended in aid of the duties listment Acts. of a neutral nation,' &c. What were the words of Earl Russell? They were these: 'That the Foreign Enlistment Act, which was intended in aid of the duties and rights of a neutral nation, can only be applied,' &c. The meaning of the sentence is altered by leaving out two of the most important words."

The Counsel of the United States are unable to discover how the insertion of the omitted words would increase or decrease, modify or affect, the proposition that the Foreign Enlistment Act was intended in aid of the duties of a neutral nation as represented by the United States.

On the same page of the British Counter Case it is further said:

"The report of the Commission appointed in 1867 to consider the laws of Great Britain available for the Enforcement of Neutrality is thus referred to: 'The Tribunal of Arbitration will search the whole of that Report and of its various appendices in vain to find any indication that that distinguished body imagined or thought or believed that the measures which they recommended were not in full conformity with international obligations. On the contrary, the Commissioners say that so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations.' Viewing their acts in the light of their powers and their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation as forbidden by international law. What is the passage which the Government of the United States have referred to, but have refrained from extracting? It is this: • In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could be actually required by International Law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency and will, so far as we can see, have been brought into conformity with your Majesty's international obligations.' Thus by leaving out the words in which the Commissioners observe that their recommendations may exceed the requirements of International Law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international law."

The United States accept without hesitation the issue thus raised by Her Majesty's Government, and they maintain that the language quoted in the British Counter Case does not justify the statement that the Commissioners observe, that their recommendations "may exceed the requirements of international law.”

The Commissioners did not say this, nor anything which in any "sense gathered from the "context," by any rule of interpretation, can be construed into the meaning which is attributed to it in the British Counter Case. They did use the exact language quoted in the American Case. They said that, if their recommendations should be adopted, the municipal law of Great Britain would, so far as they could see, have been brought into conformity to international obligations. They also said that, in making those recommendations, they had not felt themselves bound to consider whether they were exceeding what could be actually required by international law. In other words, they said that although it seemed to them that, while the proposed recommendations were in harmony with existing international obligations, yet they did not found the recommendation on that fact, but on its own intrinsic merits. The Arbitrators will judge whether this is not the fair and reasonable construction of the language.