1. The Queen's Proclamation of Neutrality, May 13, 1861.1

2. The regulations issued by the Government of Her Britanic Majesty in regard to the reception of cruisers and their prizes in the ports of the Empire, June 1, 1861; June 2, 1865.2

3. The Executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862.3

4. The Executive orders to detain the Florida at Nassau, August 2, 1862.4

5. The Executive orders to detain the rams at Liverpool, October 7, 1863.5

6. The debate and vote in Parliament justifying the detention of the rams by the Government "on their own responsibility," February 23, 1862.6

7. The final decision of Her Majesty's Government in regard to the Tuscaloosa, as expressed by the Duke of Newcastle to Governor Woodhouse, in the following words:

If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction, until properly reclaimed by her original owners.-November 4, 1863.7

8. The Executive order that, "for the future, no ship of war belonging to either of the belligerent powers of North America shall be allowed to enter or to remain or to be in any of Her Majesty's ports for the purpose of being dismantled or sold," September 8, 1864.

9. The final Executive orders to retain the Shenandoah in port "by force, if necessary," and to "forcibly seize her upon the high seas,' September and October, 1865.

10. The rejection by Parliament of the section of the new Foreign Enlistment Bill, which provided for the exclusion from British ports of vessels which had been fitted out or dispatched in violation of the act, as recommended by the Report of the Royal Commission. This rejection was moved by the Attorney General and made by Parliament, on the mere ground that this power could be exercised by Order in Council.10

That these acts were understood by the Government of Great Britain to rest upon the Prerogative and its proper exercise, is apparent from the responsible opinions of the Law Officers given upon fitting occasions. 1. In regard to the Alabama, the Law Officers of the Crown wrote to Earl Russell on July 29, 1862:

We, therefore, recommend that, without loss of time, the vessel [the Alabama] be seized by the proper authorities; after which an opportunity will be afforded to those interested, previous to condemnation, to alter the facts, if it may be, and to show an innocent destination of the ship.11

2. In the case of Laird's rams, the Law Officers of the Crown wrote to Earl Russell, on October 19, 1863:

We are of the opinion, with respect to the first question submitted to us, that the answer to parties who have a right to make the inquiry should be that the seizure [of the rams] has been made by the orders of Her Majesty's Government under the authority of the provisions of the Foreign Enlistment Act.12

1 Brit. App., vol. iii. p. 17.

2 Ibid., pp. 17-22; ibid., vol. v, pp.125–131.

3 Ibid., vol. i, p. 203.

4 Ibid., p. 29; ibid., vol. v, p. 55.

6 Am. App., vol. v, pp. 472-500.

7 Brit. App., vol. i, p. 327.

8 Ibid., vol. iii, p. 20.

9 Ibid., vol. i, p. 657.

5 Ibid., vol. ii, p. 384, et. seq. 10 Debate in Parliament, Note B, App. to this Argument.

11 Brit. App., vol. i, p. 200.

12 Ibid., p. 405.

3. In the House of Commons, on February 23, 1864, the Solicitor General, speaking of the seizure of the rams and defending the action of the Government, said: "We have done that which we should expect others to do for us, and no more.”1

In the same debate the Attorney General, Sir Roundell Palmer, said: The honorable gentleman asks what right the Government had to detain the ships. [Mr. Seymour Fitzgerald: "Hear, hear."] The honorable gentleman cries, "Hear;" but I do not hesitate to say boldly, and in the face of the country, that the Government, on their own responsibility, detained them.2

He, Sir Roundell Palmer, said further:

In a criminal case we know that it is an ordinary course to go before a magistrate, and some information is taken of a most imperfect character to justify the accused's committal to prison for trial, the prisoner being remanded from time to time. And that course cannot be adopted in cases of seizing of vessels of this description. The law gives no means for that; and therefore it is that the Government on their own responsibility must act, and have acted, in determining that what had taken place with regard to the Alabama should not take place with respect to these ships.3

4. In the House of Commons, on the 28th of April, 1864, the Attorney General, Sir Roundell Palmer, defending the action of the Government in regard to the Tuscaloosa, as expressed in the dispatch of the Duke of Newcastle, before quoted, said :

Can it be said that a neutral sovereign has not a right to make orders for the preservation of his own neutrality, or that any foreign power whatever violating these orders, provided it be done willfully or fraudulently, is protected to any extent by international law within the neutral territory, or has any right to complain on the ground of international law of any means which the neutral sovereign may see fit to adopt for the assertion of his territorial rights? By the mere fact of coming into neutral territory in spite of the prohibition, a foreign power places itself in the position of an outlaw against the rights of nations; and it is a mere question of practical discretion, judgment, and moderation, what is the proper way of vindicating the offended dignity of the neutral sovereign.4

5. On the 26th of August, 1864, the Attorney and Solicitor General, writing particularly of the proposed executive order before referred to, in regard to the sale of belligerent war vessels in the ports of Great Britain, used these words:

The enforcement of such orders and directions, concerning as they do ships which, on their entrance into any port of Her Majesty, will have the character of public ships of war of a foreign Power, and will not yet have become the property of any of Her Majesty's subjects, does not belong to the municipal law of this country, but to the same branch of the Royal Prerogative, by virtue of which Her Majesty has the power of making peace and war and generally of conducting and controlling the external relations of this country with foreign Governments.5

6. On the 21st of April, 1865, the Law Officers of the Crown thus wrote to Earl Russel, in reply to a request for instructions to Governor Darling:

With respect to his Excellency's request that he may receive instructions as to the propriety of executing any warrant under the Foreign Enlistment act on board a Confederate (public) ship of war, we are of opinion that, in a case of strong suspicion, he ought to request the permission of the commander of the ship to execute the warrant; and that, if this request be refused, he ought not to attempt to enforce the execution; but that, in this case, the commander should be desired to leave the port as speedily as possible, and should be informed that he will not be re-admitted into it.6

V. That the faculties for this preventive service are inseparable from the Executive power of every Government, in the conduct of Preventive power its foreign relations, is proved by the concurrent evidence inseparable from the furnished in the proofs laid before the Arbitrators, respecting the means possessed by the principal nations of Europe, and by the

1 Am. App., vol. v, p. 496.

2 Ibid., p. 477.

3 Am. App., vol. v, p. 470.

4 Ibid., p. 570.

idea of executive power.

5 Brit. App., vol. i, p. 465.

6 Ibid., p. 558.

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 advanty'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 miscarriage or need of delay.

Omnipotence of

VII. The omnipotence of Parliament, the great principle of the British constitution, was always at the service of the GovernParliament. ment, 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. (b) When, however, the anomalous vessels of a belligerent not recognized as a nation or as a sovereign claim a public character in the port of hospitality, the only possible concession of acceded to a bellig such character must, in subtracting them from judicial control, 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.

It should not be

erent not recognized as a political power.

erent, in a case like

the present, is the

(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 belligpitality they now seek, such nation has the right, and, as remedy 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.

Great Britain

have 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 and 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 hos

territory, 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 neutral 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 proot 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