1

is conspicuous from the outset to the close of the transactions now under review. All the observations in answer to this charge, made in 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.

ings

proceed

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.

The idea of an in

This theory and practice of Great Britain, rejecting the international duty and, necessarily, omitting any spontaneous, strenuous, and 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

pendent of step s

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 Great Britain indecomplained of, or discovered by the Minister of the United taken by the officers 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.

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 materi- The Government of als 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

ment of Great Britain. Nor has the conduct of other great Powers, under a similar obligation of duty, either adopted the theory or followed the methods by which Great Britain governed itself. That the Government, as such, should act and continue to act, and have and use the means of acting, and, in default of so doing, be responsible for the consequence, is, we submit, the public law of nations as observed by the principal Powers, including Great Britain in other cases than that now in judgment before the Tribunal.

Absence of

earnestness

this

Jart of Great Britain

of hostility com

It was the failure of the British Government "to use due diligence to maintain inviolate its international obligations to the on the United States, in form, manner, and effect, as above stated, a license for the acts that gave the first warrant and license to the enlistment of plained of. the sympathies for the rebels and hostility to the Government of the United States, (which animated such large and influential interests in Great Britain,) in the actual practical service of the Rebellion. It was this absence of an active affirmative disposition of diligence in the Government, so apparent to all its subjects, to the Rebel agents, and to the Minister and Consuls of the United States, that threw the whole unchecked freedom of trade and industry, enterprise and appetence of gain, so much insisted upon in the British Case and Counter Case as a necessary part of British liberty, into zealous complicity with, and earnest adhesion to, the maritime war against the commerce of the United States, whose disasters are under review before the Tribunal. In this course of practical non-administration of the duty assigned by the Treaty as binding upon Great Britain, we ask the Tribunal to find a definite and substantial failure to fulfill that duty, and to inculpate the Nation accordingly.

As early as August 28, 1861, the principal newspaper of Liverpool (the Post) correctly described the state of feeling in the British community as follows:

We have no doubt whatever that the vast majority of the people of this country, certainly of the people of Liverpool, are in favor of the cause espoused by the Secessionists. The defeat of the Federalists gives unmixed pleasure; the success of the Confederates is ardently hoped, nay, confidently predicted.

It was an appreciation of this influence prevailing in that community and affecting the local officers of the Government, that prompted Earl Russell to say:

It appears to me that if the officers of the Customs were misled or blinded by the general partiality to the cause of the South, known to prevail at Liverpool, and that prima-facie case of negligence could be made out, Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.1

It needs no argument to show that if the Government of Great Britain in 1861 and 1862, when the systematic operations of the Rebel agents, in a community thus enlisted in their cause, were denounced by the Minister of the United States, had used to those agents and that community the language employed by Earl Russell in 1865, and had executed the sentiments thus expressed, there would have been no "Alabama claims" to occupy the attention of this Tribunal. Earl Russell, after stating that "he was sorry to observe that the unwarrantable practice of building ships in this country, to be used as vessels of war against a State with which Her Majesty is at peace, still continues," proceeded to say: "Now, it is very possible that by such shifts and stratagems the penalties of the existing laws of this country, nay, of any law that could be enacted, may be evaded; but the offense thus offered to Her Majesty's authority and dignity by the de facto rulers of

Note B of Appendix to this Argument.

the Confederate States, whom Her Majesty acknowledges as belligerents, and whose agents in the United Kingdom enjoy the benefits of our hospitality in quiet security, remains the same. It is a proceeding totally unjustifiable, and manifestly offensive to the British Crown."1

ative and statutory

II. The next great practical failure to fulfill its duty to the United States, on the part of Great Britain, was in its omission to Failure to ascerascertain its resources of Prerogative and statutory author- tain extent of Prerogity for maintaining its neutrality, and to announce to its powers. subjects and to the Rebel agents the possession of these powers and the determination to use them. If an examination had satisfied the Government that it was not endued with the requisite faculties of prevention, it should have put them in practice, and scattered the machinations against its peace and honor, and against the maritime interests of the friendly power to which it was so closely engaged to observe its international duty. If, on the other hand, such examination disclosed doubts or defects of preventive Power, it should have obtained from Parliament the adequate authority. If the Government received from its principal Law Officers an interpretation of the Prerogative and of the Foreign Enlistment Act, that put at its service the seasonable, appropriate, and adequate means for the prevention of the acts and occurrences within its jurisdiction, which the Rules of the Treaty prescribe, it should have placed the ship-builders of Liverpool and the Clyde in the predicament of open contemners of the laws of the realm, and of actual conflict with the whole power of the Government.

If, on the other hand, these Law Officers advised a corroboration of the preventive power of the Government, it should have been granted by statute. We have searched in vain for any evidence in these regards of "due diligence" on the part of the Government at the opening of the Rebel hostilities. We find inflammation of popular sentiment urging a participation in those hostilities, and instant occasion for the Government to be energetic and alert. We find earnest and persistent appeals to take such a position made to the Government by the representatives of the United States. In 1870, when the war between France and Germany broke out, we find Great Britain enacting a vigorous Foreign Enlistment Statute, and exhibiting zeal and alacrity in the exercise of its new powers, and in putting in motion all the requisite prerogative authority by Orders in Council.

Suppose, for a moment, that in May, 1861, in sequence of the Queen's Proclamation, the Attorney General of England had brought into Parlia ment a Foreign Enlistment Bill to place at the service of the Executive Government the means of maintaining toward the United States the duties of neutrality which that Government by the Proclamation had assumed-such a Bill as was passed in 1870. Suppose, in so doing, he had, speaking the purposes and motives of the Executive Government, said:

I think the House will agree that, upon the breaking out of this unexpected and most calamitous war, Her Majesty's Government would have been very much to blame if they had delayed for a single day to introduce this measure.2

Suppose other members of the Government had supported the Bill by arguments like these:

* *

He need not adduce arguments to show how unjustifiable and monstrous it would be for British subjects to take part in hostilities, when the avowed policy of the Government was that of perfect neutrality. A similar law existed in the United States; while on the continent, Governments were able to prevent their subjects from violating neutrality.

1 Am. App., vol. i, p. 631; cited on p. 309, Case of the United States.

2 Attorney General Collier in Parliament, August 1, 1870. Note B, Appendix to this Argument.

The measure gave power to the Secretary of State to detain a suspected ship; as also to local officers at the ports, who would report to the Secretary of State, so as to cast on him full responsibility. It embodied all the recommendations of the Report, with the exception of that relating to the reception of vessels into British ports, and this object could be accomplished by Orders in Council.1

Suppose arguments against its interference with freedom and shipbuilding had been answered as follows:

The fact that war was raging (on the Continent) was no reason for not amending our municipal law in points where this was notoriously defective. It was ridiculous to say that a builder did not know that the vessel he was building was for war purposes; and it was a less evil that the ship-building interest should suffer a little, than that the whole nation should be involved in difficulties.2

It would not occur in one case out of a thousand that the builder of a ship would have the smallest difficulty in proving what his contract was, and under what circumstances it was undertaken.

The object of the clause was to prevent the escape of suspected ships from the harbors of the kingdom till the Secretary of State has been communicated with. The clause gave an ad interim power of seizure.3

The object was to give power to any officer who saw a ship about to escape to prevent such escape.

The officers named would be able to seize a vessel without special instructions, in order that such vessel might not be allowed to escape. It was a most important power. The clause was copied from the Merchant Shipping Act, which had been in force for twenty years without any complaint.1

Suppose all this, and we should have seen a performance by the British Government of the duty of "due diligence" in the particular now insisted upon, for the absence of which we now inculpate that Nation. But we should have seen no Florida, or Alabama, or Georgia, or Shenandoah upon the ocean, and redress for injuries would never have needed to be sought from the justice of this Tribunal by the United States.

But we are not left to argument to show how wide and beneficial would have been the practical effects of such action by the British Government, at the opening of the rebel hostilities, in checking and frustrating the proclivities of British subjects to aid and invigorate the maritime war against the United States, nor how readily the subordinate and local official staff could have worked out these provisions of the law. Some extracts from the correspondence of the German Embassador and the British Foreign Secretary will exhibit this influence and its results in the clearest light. Count Bernstorff, under date of October 8, 1870, wrote to Earl Granville an elaborate representation on the subject of the export of contraband of war, and therein speaks as follows:

According to Your Excellency's own admission the executive has the power to prohibit the export of contraband of war. But you state the practice is to make use of this right only in the interest of England, as in the case of self-defense. A letter of the Duke of Wellington to Mr. Canning, dated the 30th of August, 1825, and reprinted in a London newspaper immediately after the indiscretion of Count Palikao, refutes this assumption, proving that England, as a neutral, has repeatedly prohibited the export of arms by an Order in Council, "according to the usual practice," as the renowned Duke says. In one part of his letter the words occur, "I am afraid, then, that the world will not entirely acquit us of at least not doing our utmost to prevent this breach of neutrality of which the Porte will accuse us."

Practice, consequently, is in itself not opposed to the adoption of a measure desired by us for the prohibition of the sale of arms to our enemy. But the law allows Government a certain latitude of consideration to make use of their power according to circumstances. Your Excellency is, however, of the opinion that the present customs

1 Lord Halifax in Parliament, August 8, 1870. Note B, Appendix to this Argument. 2 Viscount Bury in Parliament, Aug. 1, 1870, ibid.

3 Solicitor General Coleridge in Parliament, August, 1870, ibid.

4 Attorney General Collier in Parliament, August 3, 1870. Note B, Appendix to this Argument.