28. Inconsistency

treaty with the re

gence to prevent,

of belief.

extracts is used for the purpose of inducing the Arbitrators of the rules of the to hold the British Government responsible for matters quirement of dili which were never actually brought to their knowledge, so when there were not as to make their prevention possible, (as in the case of the Georgia and the Shenandoah, and of the vessels which took out armaments to those ships, and to the Alabama and the Florida respectively, from Great Britain,) it appears to lose sight of the fact that, according to the express words of the first Rule, and the evident meaning of all the three Rules of the sixth article of the Treaty of Washington, the obligation to "use diligence to prevent" is consequent upon, and not antecedent to, the existence of "reasonable ground for believing," that in the particular case something which (if known) ought to be prevented, is intended to be done. If that reasonable ground for belief was in any particular case absent, there was no such obligation; and to invite the judgment of the Arbitrators upon some supposed defects in the administrative system of Great Britain, with regard to the discovery of offenses against the Foreign-Enlistment Act, or the laws of Customs and Navigation, in order to found thereon a conclusion that, under some different system of administration, facts which never actually came to the knowledge of the British Government, and of which they had no information, either from the Agents of the United States or from any other quarter, might possibly have been discovered in time for prevention, is, practically, to ask for the substitution of different Rules for those of the Treaty, and to impose retrospectively upon Great Britain obligations, which neither usage nor international law has ever hitherto recognized as incumbent upon any nation.

29. The British

tive and spontaneous

As, however, it is conceivable that this line of argument may be thought to deserve rather more attention, when it comes to Government took ac- be applied to cases in which information, unaccompanied measures to acquire by legal evidence of any actual or intended violation of the tion, and to prevent law, was given to the British Government before the debreaches of the law. parture of a vessel alleged to have been illegally equipped, it seems expedient not to pass it by without refutation.

all proper informa

It is a complete error to suppose that the British Government did, in fact, ever rely merely on such information and evidence of actual or intended violations of the Foreign-Enlistment Act as might reach them from the Ministers, Consuls, or Agents of the United States; or that they did not recognize and fulfill the duty of endeavoring, by the independent activity and vigilance of their own officers, and by following up all such information as reached them from any other quarters by proper inquiries made through those officers, to discover and prevent any intended breaches of the law.

The warnings of the Proclamation of Neutrality, issued at the commencement of the war, announced to all the Queen's subjects Her Majesty's determination to enforce the Foreign-Enlistment Act against all offenders, to the best of her power. Notwithstanding the statements, (already cited at page 160 of the American Argument,) it is the fact that there did exist "systematic and general means of action," adequate in all respects for the due and bona-fide enforcement of the law, in all the ports and places where ship-yards existed, throughout the British Empire. It is also the fact, notwithstanding what is there said, that special instructions were issued to the Custom-house authorities of the several British ports, where ships of war might be constructed, and also by the Secretary of State for the Home Department to the various authorities with whom he was in communication, to 66 endeavor to discover and obtain legal evidence of any violation of the

Foreign-Enlistment Act, with a view to the strict enforcement of that Statute, wherever it could really be shown to have been infringed." These instructions were repeated in or before April, 1863; and Earl Russell, when communicating that fact to Mr. Adams, (2d April, 1863, Appendix to Case of United States, vol. i, page 590,) stated that "Her Majesty's Government would be obliged to him to communicate to them or to the local authorities at the several ports any evidence of illegal acts which might from time to time become known to him."

"Of these facts," says the American Argument, "no evidence is found in the proofs submitted to the Tribunal." Is not Earl Russell's statement of the fact to Mr. Adams evidence? Is his veracity, in a matter which was necessarily within his knowledge, disputed? The British Government have not so dealt with statements made, as to matters within their knowledge, by men of honor in the public service of the United States.

But this is not all. There are facts which speak for themselves.

In the case of the Pampero (which was afterward seized and prosecuted to condemnation) and of another suspected vessel at Glasgow, information was collected by the Commissioners of Customs, and communicated to Mr. Adams by Earl Russell in a letter of the 21st of March, 1863, which was transmitted by Mr. Adams to Mr. Seward in another letter dated March 27, 1863, in which he (Mr. Adams) used these words: "It is proper to mention that the investigation appears to have been initiated by his Lordship, upon information not furnished from this Legation; and that his communication to me was perfectly spontaneous." (Appendix to the Case of the United States, vol. ii, page 203; and see British Appendix, vol. ii, page 474, &c.)

The circumstances relative to the Georgiana, after her arrival at Nassau, were first brought to the notice of Her Majesty's Government by information (derived from a New York newspaper) which they received from Mr. Archibald, the British Consul at New York, in April, 1863. This information was followed up by careful and spontaneous inquiries as to this ship and as to another vessel, called the South Carolina, said to be arming in the Clyde, neither of which proved to be intended for war. (British Appendix, vol. ii, page 158.)

In the case of the Amphion, respecting which a representation was first made by Mr. Adams on the 18th of March, 1864, inquiries had been set on foot by Her Majesty's Government as early as the preceding 13th of January. In the case of the Hawk, the first representation made by Mr. Adams was dated 18th of April, 1864; but inquiries had been previously made by the British Government, upon information received by them on the 2d of April from the Commissioners of Customs. In the case of the Ajax, as to which no representation was made before she sailed by the American Minister or Consul, careful inquiry had been made by the Customs Department in Ireland, in January, 1865; their attention having been called to the ship by the Coast Guard officers. The action of the British Government to prevent the Anglo-Chinese flotilla, early in 1864, (as to which no obligation, municipal or international, was incumbent upon them,) from falling into the hands of the Confederates, was wholly spontaneous and unsolicited.

30. The British

Furthermore: In every case in which information, however unsupported by evidence, as to any suspected vessel, was communicated to Her Majesty's Government by Mr. Adams, or otherwise, a strict watch was directed to be kept on the vessel, and special inquiries were ordered to be made by the proper persons. The results of these inquiries were reported, in every

Government followed received, by the

up all information

proper inquiries.

case, to Mr. Adams by Earl Russell. In a great majority of instances, even when Mr. Dudley or Mr. Morse (the United States Consul) had stated and reiterated their suspicions and belief, with the utmost confidence, and had supported it by hearsay statements, or hearsay depositions, in which mention was often made of the connection of Captain Bullock, and of the firms of Fraser, Trenholm & Co., Fawcett, Preston & Co., and W. C. Miller & Sons, or one or more of them, or other known or suspected Confederate agents, with the vessels in question, the belief of the local authorities, that the law had not been, and was not about to be, infringed, proved to be well founded. In the cases of the Florida and the Alabama, inquiries were made by the Custom-house officers, among other persons, of the builders of these ships, and other information was obtained by those officers, which was duly reported to Her Majesty's Government. Earl Russell made inquiries concerning the Florida of the Italian Government; and the zeal and activity of the proceedings of Commanders McKillop and Hinckley, at Nassau, with respect to that ship, will not be called in question. It was by means of a very difficult investigation, conducted by Her Majesty's Government, through their own Agents in France, Egypt, and elsewhere, that the evidence applicable to the rams at Birkenhead was brought up to the point necessary to establish a "reasonable ground for belief" that those rams were really intended for the Confederate service.

Nor is there any trace of proof, in any part of the voluminous Appendices to the Cases and Counter Cases on either side, that the various officers of the Customs and other civil or naval authorities to whom the duty of taking proper measures for the discovery and prevention of offenses against the Enlistment Act was intrusted, neglected any proper means, which they could and ought to have used, to obtain information or evidence. It was not, indeed, their practice to search out and interrogate all persons who might be criminally implicated by any accusation; because such persons are not obliged, by British law, or according to the general principles of justice, to answer any questions tending to criminate themselves; and also because the general experience of those accustomed to the administration of the law is, that statements voluntarily made by such persons, if really guilty, are not likely to be of assistance in the discovery of truth. Nor was any general system of espionage established; though, on what were considered proper occasions, (see British Appendix, vol. ii, page 169,) the agency of detective officers was employed by the municipal authorities for these purposes. Such a general system would be contrary to the genius and spirit of British institutions; it cannot be pretended that, to establish such a system, was part of the "diligence due" by any free country to any foreign nation. But, speaking generally, everything was done which, in the usual and proper course of the civil and political administration of affairs by the Executive Government of Great Britain, ought to have been done; and, if these means were not sufficient, in all cases, to discover and prevent (though they did prevent in most cases) the violation of the law, the experience of the British Government, in this respect, was only the ordinary experience of all Governments, with respect to the occasional success and impunity of every species of crime.

VIII.-Results of the Administrative System, and of the practice with respect to evidence of the United States in similar cases.

In a question of due diligence between Great Britain and the United

31. Necessity and

evidence from those

tion.

States, it cannot, with any show of justice or reason, be considered irrelevant, that the general system and principles, propriety of seeking with respect to evidence and otherwise, on which the British who give informaGovernment acted throughout these transactions, were substantially the same as those which have been usually and in good faith acted upon, in similar cases, by the Executive Authorities of the United States. A neutral Government, though it ought spontaneously to use all proper means of discovering and preventing violations of law, which are really within its power, may, in many cases, not have the same means of knowledge which the agents of a foreign Government (to which those illegal acts would be dangerous) may happen to possess; and, when its information proceeds from those agents, it is both natural and reasonable that they should be requested to furnish evidence in support of their statements. In transactions of this kind (as Mr. Dudley stated to Mr. Seward in his first letter about the Florida, February 4, 1862, with respect to that vessel) "there is much secrecy observed;" and, when this happens, (as in ordinary cases of crime,) the preventive powers of the law cannot be called into activity, without some timely information; and the persons who give that information are usually able, and may properly be requested, to produce some evidence in its support, if such evidence is really forthcoming.

32. Mr. Jefferson's

5, 1793.

Mr. Jefferson, in his letter to Mr. Hammond, dated the 5th September, 1793, (annexed to the Treaty between Great Britain and the United States of the 19th November, 1794,) after promising letter of September to use all the means in the power of his Government to restore British prizes captured by vessels "fitted out, armed, and equipped in the ports of the United States," and brought into any of those ports by their captors after the 5th June, 1793, and acknowledging the obligation to make compensation for such prizes, if such means for their restitution should not be used, added the following just and reasonable remarks:

Instructions are given to the Governors of the different States to use all the means in their power for restoring prizes of this last description found within their ports. Though they will, of course, take measures to be informed of them, and the General Government has given them the aid of the Custom-house officers for this purpose, yet you will be sensible of the importance of multiplying the channels of this information, as far as shall depend on yourself or any person under your direction, in order that the Governors may use the means in their power for making restitution. Without knowledge of the capture, they cannot restore it. It will always be best to give notice to them directly; but any information which you shall be pleased to send to me also, at any time, shall be forwarded to them as quickly as distance will permit.1

33. The onus imclaimants against the

Commissioners of the

treaty of 1794.

When the questions of compensation, claimed by the owners of captured British ships, which had not been restored according to this letter, came for decision before the Commissioners posed upon British under the Treaty of 1794, no such claim was allowed, except United States by the when the claimant had substantiated his legal right to have Claims under the prize restored by a regular judicial proceeding, properly conducted before the proper Court of the United States; which, of course, threw upon him, in all such cases, the burden of proving, by legal evidence, the illegal outfit and armament, within the jurisdiction of the United States, of the capturing vessel.2

34. Uniform refer

Extracts are here subjoined from some of the letters of the various authorities of the United States (to which reference has been already made) during the wars between Spain and Portugal, and their revolted Colonies in 1816-1820; and, more recently, at the time of certain designs against Cuba, in 1869. These will be found to throw some light upon the

1 British App., vol. v, p. 256.

2 Case of the Elizabeth, British App., vol. v, p. 319–328.

ence of the Execusimilar cases to legal procedure, and the evidence.

tive authorities of the United States in

necessity for legal

functions and powers of the District Attorneys and Marshals of the United States, and on the practical rules by which the exercise of their functions and powers has always been governed.

On the 4th September, 1816, Mr. Glenn (District Attorney for Maryland) wrote to the Spanish Consul, (Chacon,) in answer to certain representations made by him:

I must beg leave to suggest_that my powers are merely legal, and not political. I have already the power, when I am officially informed, in a legal manner, of any violation of the laws of the United States, to institute a prosecution against the offenders, and conduct the same to a final issue; and I hope I shall always be ready and willing to go thus far on all proper occasions. If an armament be fitting out within the district of Maryland for the purpose of cruising against the subjects of the King of Spain, it is a breach of our laws, and the persons concerned therein are liable to punishment; but before I can take any legal steps in the affair, the facts of the case must be supported by affidavit taken before some Judge or Justice of the Peace, and when that is done, I will, without delay, proceed to call upon the offenders to answer for a breach of our laws. If, therefore, you will be pleased to furnish me with the names of any witnesses who can make out the case which you have stated, I will at once have them summoned, if within the reach of the process of our Judges or Justices, and attend to taking their depositions, or, if you have it in your power to bring within this district any persons who can testify on the cases referred to, I will be prepared to receive the statements on oath as the foundation for a judicial inquiry into the conduct of the offenders. I shall here take occasion to say that I cannot proceed in the cases you have mentioned upon the mere suggestion of any person, unless that suggestion be accompanied by an affidavit. (Documents accompanying the Counter Case of the United States, part ii, pages 39, 40.)

On the 25th February, 1817, the same District Attorney wrote to Mr. Monroe, Secretary of State:

You are well aware I cannot proceed to arrest persons and proceed under the laws of our country, for a breach of those laws, upon a mere suggestion alone; but whenever a suggestion shall be accompanied by anything like proof, I will take great pleasure in prosecuting the offenders to punishment, and their property to condemnation, in all proper cases. (Ibid., pages 55, 56.)

On the 28th March, 1817, Mr. Rush (Acting Secretary of State) wrote to Mr. Mallory, Collector of Customs at Norfolk, directing him to make inquiry into the cases of two armed vessels, the Independence of the South and the Altravida, which had then lately arrived at Norfolk from voyages, in the course of which they had cruised against, and made captures of, vessels or property belonging to the subjects of the King of Spain.

If [said Mr. Rush] there be any proof of their having committed, or of their intending to commit, an infraction of any of the laws or Treaties of the United States, you will cause prosecutions, subject to the advice of the Attorney of the United States, to be instituted against all parties concerned, or such other legal steps taken as events may make necessary and justice require.

And on the same day, Mr. Rush also wrote to Mr. MacCulloch, Collector of Customs at Baltimore, directing inquiries to be made as to another vessel called the Congress:

If [he said] there be any sufficient proof that this vessel either has committed, or that she intends to commit, a breach of any of the laws or Treaties of the United States, you will advise the District Attorney, and cause prosecutions to be forthwith instituted against all parties concerned, and such other steps taken, whether with a view to prevent or punish offenses, as justice requires, and the laws will sanction.

On the 11th of April, 1817, Mr. Collector Mallory, having been requested by Don Antonio Villalobos to detain the Indepencia del Sud and the Altravida, and certain goods (in fact, prize goods) landed from that vessel, for alleged violation of the Act of Congress of 1794, answered by the request

That I may have the aid of every light to guide me which facts can afford, and as the allegations made by you, in an official form, must be presumed to be bottomed on positive facts which have come to your knowledge, you will have the goodness, I trust, to furnish me with evidence of their existence in your possession.