In vol. iv, pp. 446-475, of the Appendix to the Case of the United States, the Arbitrators will find the document referred to in the above paragraph. It purports to be a "list of American vessels captured and destroyed by rebel vessels during the late war," and to be compiled in answer to a resolution of the House of Representatives, requesting information "relating to the destruction during the late war, by rebel vessels, of such American vessels as were engaged in trade or comierce." This list contains the names of certain Confederate shipstwenty-three in number, (not, however, including the V. H. Joy and the Music, which are now for the first time mentioned)-with the captures made, or alleged to have been made by them, respectively, so far as information on the subject had been received at that time by the Department of State. Of these twenty-three ships, four (the Alabama, Florida, Georgia, and Shenandoah) are described as having been fitted out in or from British ports; three others as having been tenders to the Florida; one as having been a tender to the Alabama; twelve others (among which are the Boston, Chickamauga, Jeff. Davis, Nashville, Retribution, Sallie, Sumter, and Tallahassee) as having been fitted out in the Confederate States. Three (among which is the Olustee) are entered without any indication of the place of equipment. It is now said, in effect, that, because this list, which purports to be a return of all captures made during the war by Confederate armed ships, wheresoever fitted out and under whatever circumstances, was subsequently bound up, with a multitude of other documents, in one of five large volumes presented to the Senate of the United States, under the general title "Correspondence concerning Claims against Great Britain," the British Government must be deemed to have had notice that the United States would attempt to charge all such captures against Great Britain. Her Majesty's Government will merely say that such an intention was one which it would not have deemed itself justified in supposing on the part of the United States, unless it had been clearly expressed. Yet it appears that the United States have actually proceeded on this principle in presenting their claims to the Arbitrators; although, for some reason not yet explained, they have hitherto abstained from extending those claims to every ship which the principle would seem to include.

8. Attention has been drawn in the Counter Case of the United States (sec. iii, par. 2) to a statement made in the British Case that "in and soon after the month of May, 1861, a number of armed ships were fitted out and sent to sea from ports in the Confederate States," and it is observed that, if it be intended "to lead the Arbitrators to suppose that there was any insurgent vessel preying on the commerce of the United States when the Florida or when the Alabama escaped from Liverpool, the United States cannot too strongly protest that Her Majesty's Government is in error in this respect."

The following are the dates of the cruises of the several vessels mentioned in the list in vol. iv of the Appendix to the Case of the United States, omitting the Florida, Alabama, Georgia, Shenandoah, and their tenders: Calhoun, (fitted out at New Orleans,) May, 1861; Savannah, (fitted out at Charleston,) June, 1861; Jeff. Davis, (fitted out at Charleston,) June to August, 1861; Winslow, (fitted out at Wilmington,) July to August, 1861; Sumter, (fitted out at New Orleans,) July, 1861, to January, 1862; York, (place of fitting out not mentioned,) August, 1861 [ ; Sallie, (fitted out at Charleston,) October, 1861; St. Nicholas, (captured by the Confederates in Chesapeake Bay,) June and July, 1862; Echo, (place of fitting out not mentioned,) July, 1862; Retribution, (fitted out in Cape Fear River,) January and February, 1863; Boston, (place of

fitting out not mentioned,) June, 1863; Tallahassee, (fitted out at Wilmington,) August, 1864; Chickamauga, (fitted out at Wilmington,) October, 1864; Olustee, (place of fitting out not mentioned, alleged to have been identical with the Tallahassee,) November, 1864.

The Florida left Liverpool on the 22d March, 1862, and was detained at Nassau till the 7th August following; the Alabama left Liverpool on the 29th July of the same year. Five captures are recorded in the list as having been made in the interval between the 22d March and the 29th July, 1862, by the vessels Echo and St. Nicholas.

It may be added that, as early as the 4th June, 1861, Her Majesty's Government was informed by the British Minister at Washington that "the privateers of the Confederate States were at that moment in full activity, and had met with considerable success.

721

Nature of the ar

of Great Britain.

9. The argument to be offered on the part of Great Britain will be strictly confined, in the first instance, to the question whether, as to any one or more, taken one by one, of the gument on the part vessels specified in the Case of the United States as 66 the cruisers for whose acts the United States ask the Tribunal to hold Great Britain responsible," Great Britain did, by any act or omission, fail to fulfill any duty set forth in the three Rules, or recognized by the principles of international law not inconsistent with those Rules. This is the single question with which the Arbitrators have, in the first instance, to deal. On the questions, therefore, whether, in regard to the general traffic in munitions of war or in other articles, between ports of Great Britain or her colonies and the Confederate States, or in regard to the general employment of agents of the Confederate Government for financial and other purposes in England, or in regard to the general partiality erroneously alleged to have been shown to Confederate vessels in British and colonial ports, the British Government did, or did not, fail in the performance of any of its neutral obligations-on these questions, and such as these, Great Britain, while referring the arbitrators to the statements as to both law and fact, contained in her Case and Counter Case, and the Appendices thereto, forbears to offer any new argument before the Tribunal. She has fully and amply vindicated the conduct of her Government on all these heads. But she declines to treat them as presenting, apart from the questions as to the particular cruisers, legitimate matter for argument between the parties to the reference, or elements for the consideration of the Tribunal.

The Sumter, Nashville, Tallahassee, Chickamauga,

Retribution.

and

10. As regards the Sumter, Nashville, Tallahassee, Chickamauga, and Retribution, Great Britain has been unable to discover in the Case or Counter Case of the United States any reasonable or intelligible ground for making the acts of these vessels, or the conduct of the British Government in respect of them, the foundation of claims against her. It will be sufficient, therefore, to refer the Tribunal to Part II of the British Case, and Parts V and VIII of the British Counter Case, in which the facts relating to these vessels are stated and commented on.2

11. It will be seen

(a.) That in the case of the Tallahassee and Chickamauga, no failure. of duty has been even alleged, much less proved, against Great Britain. These vessels were built, indeed, in England, but they were built, and were used, as ships of commerce; it was by an after-thought, when they were already within the waters of the Confederate States, and had be

1

1 Appendix to Case of United States, vol. i, p. 56.

2 See also British Counter Case, Part IX, pp. 107, 108, as to the Sumter and Nashville, and p. 114 as to the Chickamauga.

come the property of the Confederate Government, that they were armed for war, and their employment as ships of war lasted but a few weeks in the one case, and but a few days in the other. They were armed in and dispatched from a Confederate port, (Wilmington,) and to the same Confederate port they returned.1

(b.) That the Sumter and Nashville were not even built in the Queen's dominions; and in respect of their original outfit, nothing is, or can be, alleged against Her Majesty's Government. Setting aside some other minor complaints, which will not bear a moment's examination, it is suggested only that they received in British ports such hospitalities as were extended to Confederate vessels in general in the ports of neutral nations.2

3

(c.) That, in the case of the Retribution, also a vessel not built or fitted out in the Queen's dominions, the facts alleged show nothing more than that her commander contrived on one occasion, by fraudulently personating the master of a prize captured by him, and concealing the fact that she was a prize, to dispose of the cargo in a small island of the Bahama Archipelago, remote from the seat of government ; and that, on another occasion, by means of a fraudulent conspiracy with a party of "wreckers," he managed to carry a prize into the same place, and to extort, through the wreckers, from her master and owners, a ransom, under pretense of salvage. These facts, if proved, establish no failure of duty against Great Britain."

The Clarence, Ta

4

12. As to the vessels said to have been employed as tenders by the Florida and Alabama, no failure of duty is alleged against cony, Archer, and Great Britain. The only question, therefore, which can Tuscaloosa. arise in connection with them is, whether, in case any liability should be established against Great Britain in respect of the Florida or Alabama, such liability should be extended to the acts of these vessels.

The Alabama. Flor

13. The discussion, therefore, in the view of Great Britain, confines itself practically, as well as of right, to the Alabama, Florida, Georgia, and ida, Georgia, and Shenandoah, the four vessels on account Shenandoah, of which claims had been made by the United States against Great Britain before the conclusion of the Treaty of Washington.

As to these vessels, the material charges made by the Substance of charges. United States appear to be in substance as follows: (a.) That the British Government did not exercise due care to prevent them from being equipped or specially adapted within British territory for war against the United States;

(b.) That the British Government did not cause them to be arrested or detained when they subsequently visited ports within the colonial possessions of Great Britain;

(c.) That they were suffered, in such ports, to obtain supplies and effect repairs, of a nature, or to an extent, inconsistent with the obligations of Great Britain as a neutral power.

14. It is not incumbent on Great Britain to prove that these charges are erroneous. It is for the United States to prove that they are true. But since the evidence of the real facts applicable to each of these ves

1 British Counter Case, p. 102. Appendix to British Case, vol. v, p. 143; Appendix to Case of the United States, vol. vi, pp. 723-726, 728–730.

2 British Case, pp. 12-22. British Counter Case, pp. 67-71, 107-109. Appendix to British Case, vol. ii, pp. 1-82, 87-129.

3 Case of the United States, p. 390; Appendix to Case of the United States, vol. vi, p. 736.

4 British Counter Case, p. 104. Appendix to British Case, vol. v, pp. 21–24, 165–197. 5 See British Counter Case, Part X, pp. 126, 127.

sels is before the Tribunal, Great Britain will proceed to state the principles which, in her view, ought to be applied to these facts.

General principles

in force when the

15. In view of the arguments which have been employed in the Case of the United States, the British Government will refer, in the first place, to the general principles of international of international law law which were in force at the time when the facts occurred, facts occurred. setting aside for the moment the three Rules which have been adopted by Great Britain and the United States, and inserted in the sixth article of the Treaty of Washington.

16. The general principles of international law are such only as have been settled by the general consent of nations. For evidence of this general consent, it is customary to refer to the works of text-writers of acknowledged merit, who have made it their business to examine the sources from which such evidence may be legitimately drawn. Opinions, however, of individual publicists, judicial decisions of the tribu nals of a particular country, acts of any one State or Government, cannot by themselves establish a rule of international law; they can only contribute toward the formation of such a rule, or to the proof of its existence. It is to be added that acts of a State or Government, when used for this latter purpose, ought to be shown to have proceeded from a sense of international obligation, and not from motives of policy or international comity.'

17. Under the general principles of international law, a broad distinction is drawn, in reference to the question of national responsibility, between the acts of a sovereign State or Government and those of individual citizens or subjects of the State or Government. And a further distinction is drawn between acts of individuals which the Government is under an obligation to prevent so far as it is able, and acts as to which the Government owes only a negative duty, the duty of not protecting the persons by whom they are done from penal consequences, which the law of nations attaches to them.2

18. These distinctions rest on the principle that, while a Government has complete control over its own acts, and may therefore with justice be held completely responsible for them, the control which it can exercise over the acts of its subjects is of necessity very limited and imperfect. This control is limited on all sides by the very nature of civil government, and by the principle of individual liberty; by considerations both of what is generally practicable and of what is generally expedient.

19. By the general principles of international law in force when the facts now in question occurred, a neutral Government was not under an obligation to prevent or restrain the sale within its territory, to a belligerent, of articles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent purchaser, or the exportation of such articles from its territory for sale to, or for the use of, a belligerent.3

20. A ship, specially adapted for warlike use, had been held by publicists in general to belong to the class of articles which are contraband of war. The citations given in Annex A to the British Counter Case from Hübner, Tetens, Galiani, Lampredi, Azuni, Rutherforth, Martens,

For argument on this point, see British Counter Case, pp. 6-11.

2 See Heffter and other writers, quoted in Annex (A) to the British Counter Case, (pp. 143, et seq.)

3 See British Case, p. 23; and precedents quoted in British Counter Case, pp. 49, 50, (note.)

Piantanida, Story, Wheaton, and Heffter, abundantly prove this position. Neither the sending of such a vessel from a neutral to a bellig erent country for sale to the belligerent Government, nor the sale of it within the neutral territory to a belligerent Government or its agents, was regarded as an act which, by the general principles of international law, the neutral Government was under any obligation to prevent. (Lampredi, Azuni, Story, Wheaton.) By one well-known writer, (M. Hautefeuille,) it had even been contended that such a vessel, if not actually armed, was not to be regarded as contraband of war, but was an object of legitimate commerce, whatever might be her force and whatever the character of her construction.

21. It was immaterial, in the view of international law, whether the vessel were sold in the market, when completed, to the belligerent purchaser, without any contract prior to her completion, or were built to the order of the purchaser. In each case the belligerent purchaser acquired an implement of war by means of a commercial transaction with a private person in the neutral country, and the adverse belligerent sustained in the one case no injury which he did not sustain in the other. 22. If, therefore, the facts brought to the knowledge of a neutral Government consisted only in this, that a vessel specially adapted for warlike use had been, or was about to be, acquired within the neutral territory by a belligerent Government or its agents, or that such adaptation was in progress in order to the delivery of the vessel to the bellig erent purchaser, the neutral Government was not bound to interfere.

23. The general principles of international law did, on the other hand, require that a neutral Government, having reasonable ground to believe that any port or place within its territory was being used, or was about to be used, by either belligerent as a base or point of departure for a military or naval expedition against the other, should exert reasonable diligence to prevent this abuse of neutral soil. Publicists had not attempted to define the meaning of the expressions employed above; they had commonly had recourse to simple and obvious illustrations, such as the assembling of an armed force ("rassemblement militaire") or the fitting out of privateers to cruise from a neutral port, (" ausrüstung von Kapern,") as was done in France in and after 1776, and in the United States in and after 1793. The circumstance that the several constituent parts of a military or naval expedition (such as men, arms, a ship or ships) had been separately procured from a neutral country, has never been held sufficient to convert the neutral country into a base or point of departure for the expedition. In the celebrated case of the Independencia, which came (under the forensic title of the Santissima Trinidad) before the great American Judge Story, the ship, which had been originally built and equipped at Baltimore as a privateer, during the war with Great Britain, was sold after the peace to new owners, who dispatched her from that port, loaded with a cargo of munitions of war, and armed with twelve guns, (constituting a part of her original arma ment,) under the command of Captain Chaytor, an American citizen, on a voyage ostensibly to the northwest coast, but in reality to Buenos Ayres; the supercargo being instructed to sell the vessel to the Government of Buenos Ayres, (then in revolt and at war with Spain,) if he could obtain a suitable price. At Buenos Ayres the vessel was sold to Captain Chaytor himself and two other persons; and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the Government of Buenos Ayres. Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres, and had received a commis