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Damages should be an indemnity.


Whether so or not a question of tact

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the same thing. Indemnity includes both lucrum cessans and damnum emergens. It includes also moral as well as material damage. And it involves injury to persons as well as things. .

But, in all cases, the question of the amount of damage and its equivalent in pecuniary reparation becomes one of fact for the consideration and the equitable determination of the competent tribunal, as illustrated by the numerous cases, especially at common law, in which revision of sentence is called for on account of erroneous verdicts of damage.

2. We proceed to apply these considerations to the several heads of injury to the United States growing out of the acts of the Confederate cruisers sub lite, and the consequent damages principles due by Great Britain, discussing these points in the order in which they appear in the American Case.

(a) The United States claim indemnity for actual property of the Government in vessels destroyed, and for immediate personal injuries to the officers and crews, caused by the Con- juries. federate cruisers, the responsibility for whose acts we have in previous discussion attached to Great Britain.

In our enumeration of the particular facts, we have considered the case of each cruiser in respect of which we claim; we have proceeded to connect each of those cruisers with the British Government, so as, in our opinion, to establish its failure to fulfill the Rules of the Treaty in regard to the several cruisers; and we have treated fully the question of diligence as to each of these cruisers, as required by the Treaty Rules.

(6) The property destroyed consisted, first, of vessels, with their apparel, equipment, and armament, belonging to the Government of the United States.

Statements in detail of the losses of this class, officially certified either by the Secretary of the Treasury or the Secretary of the Navy, according as the vessels appertained to one or the other branch of the public service, appear in the appendix to the American Case.

There is no question here of indirect or direct damages, notwithstanding some vague suggestions to that effect in the British Counter Case.

If a ship destroyed at sea is not a case of direct loss, then there is no sense in language and no reason in law.

What amount of damage is due in such a case ? Surely the value of the thing destroyed is the minimum of such amount, even throwing out of question the element of wrong and looking at it as one of simple negligence.

How shall the value of the thing destroyed be ascertained? We present official certificates of the value, and we confidently submit, as between governments, that such official statements are to be received as fact. The British Counter Case undertakes to contradict such official certificates by means of opinions of the British Admiralty. We reject all such opinions. We refuse to recognize them as available in any sense to detract from the authentic proof contained in the authoritative documents offered by the American Government.

(c) The United States claim indemnity in like manner for vessels and other actual property of private citizens of the United States destroyed, and for immediate personal injuries to the served and injuries officers and crews, caused by Confederate cruisers, the re. zens of the United sponsibility of whose acts we have, as we think, already attached to the British Government.

As to property of the United Stutes destroyed.

1 Sourdat, De la Responsabilité, tom. i, p. 224.

As to property de

inflicted upon


As toppenses in pursuit cruisers.

The nature of these reclamations is explained in the American Case and in the appendix thereto, especially in the seventh volume, and in supplementary documents there will be found detailed statements, made on oath, with valuations and other particulars, for the information of the Tribunal.

The British Counter Case undertakes to control the facts thus set forth, and to do so by means of estimates, made by British subjects at the request of the British Government.

The Counsel of the United States respectfully submit that the claims of the United States in this behalf, vouched as they are, cannot be met by any such conjectural estimates as are put in by the British Government.

The United States, in those documents, have exhibited the value of the property captured or destroyed as the primary element and lowest measure of damage and of consequent reparation. Justice, we conceive, and the universal practice of nations, demand thus much, at least, of indemnity for wrong. (d) The United States also claim payment of the expenses incurred

by the Government in pursuit of the Confederate cruisers in Ol the question; of which expenses an account is given under the

authority of the proper department of the United States. In this case, as in that of public vessels captured, we deny that the authentic accounts of the American Government can be controlled, as the British Counter Case undertakes to do, by conjectural estimates of officers of the British Government.

We conceive this damage to come within the most rigorous rules of direct damage.

Indeed, Mr. Gladstone himself, in specifying the contents of the two classes of damage, direct and indirect, as he regards them, places the cost of pursuit in the first category.

We disregard the suggestion, offered in the Counter Case of the British Government, that the United States are in fault for not having sooner captured the Alabama and Florida, or having failed to capture other cruisers of the Confederates. The injured party, as we have already argued, is not held to take extraordinary measures to counteract the wrongful acts of the injuring party, but only ordinary measures. The evidence in the American Case and Counter Case shows that the United States did make great efforts and a diversion of forces for suppression of the Rebellion, at a large expense, for the pursuit of the Confederate cruisers in question; but if they had made none the omission could not be justly alleged in defense by Great Britain. This very objection on tbe part of the British Government confirms our claim of indemnity in this behalf. If it was the duty of the United States to pursue a Confederate cruiser, this duty being imposed upon us by the culpable conduct of the British Government, surely we have a perfect right to call on Great Britain to pay the expenses of such pursuit, in which we were only protecting ourselves against the effects of the delinquencies of the British Government.

The British Counter Case argues at some length against all claims on the part of the United States on account of the Confederate cruisers, even conceding that by failure to use due diligence Great Britain shall have incurred the culpability contemplated by the Treaty Rules.

To much of this argument we have already replied, either in the state. ment of general propositions or in particular commentary. ceed to make other appropriate comments thereon.

1 See Mr. Gladstone's speech, Londou Times, February 7, 1872.

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In reading this denial in the British Counter Case of any responsibility on the part of Great Britain, notwithstanding there should be estab. lished legal responsibility, we could not but reflect on what has been admitted in this respect by most intelligent members of Parliament, including successive Cabinet Ministers.

Mr. Cobden's memorable remarks on this point, while the occurrences were passing, are quoted in the American Case. We requote only his statement as to actual losses by capture as follows:

“ You have been carrying on hostilities from these shores against the people of the United States, and bave been inflicting an amount of damage on that country greater than would be produced by many ordinary wars,

It is estimated that the loss sustained by the capture and burning of American vessels has been about $15,000,000, or nearly £3,000,000 sterling. But that is a small part of the injury which has been inflicted on the American marine."

That was in 1864. Several years afterward, when there had been time for reflection, Lord Stanley said:

I have never concealed my opinion that the American claimants, or some of them at least, under the reference proposed by us, were very likely to make out their case and get their money. To us the money part of the affair is inappreciably small, especially as we have on our side counter claims, which, if only a small portion of them hold water,-and you can never tell beforehand how these matters will turn ont, - will reach to a considerable amount, and form a by no means wimportant set-off to the claims preferred against us. But, I think, if matters were fairly adjusted, even if the decision went against us, we should not be disposed to grudge the payment. The expense would be quite worth incurring, if only in order to obtain an authoritative decision as to the position of neutrals in future wars.

Mr. Forster said, in the same debate :

· They should further consider wbether arbitration was the means of settling the matter. Tremendous injury had been inflicted on American citizens by means of the attacks upon their ships, and if the present misunderstanding was not settled upon a principle which would carry with it the feeling and moral sense of both countries, there was reason to fear that whenever we engaged in war we would suffer in the same way.”

Earl Russell has himself said, in a passage hereinbefore quoted from the preface to the edition of his speeches :

“Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.”

Will strict juridicial inquiry into the law and facts sustain the seopinions of Lord Stanley, Mr. Forster, and Lord Russell? We think it will."

First. The Treaty itself seems to require an award of pecuniary reparation. It stipulates that

In case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it thinks proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it, (Article VII.) It further stipulates that in case the Tribunal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the High Contracting Parties agree that a Board of Assessors shall be appointed to ascertain and determine what claims are valid, and what amount or amounts shall be paid by Great Britain to the United States, on accouut of the liability arising from such failure, as to each vessel, according to the extent of such liability as decided by the Arbitrators. (Article X.)

All these expressions, we submit, imply an award of substantial damages and satisfaction of all losses growing out of the acts of the Confederate cruisers, provided the finding of the Tribunal, on the question of fulfillment or non-fulfillment of duty, be adverse to Great Britain.

We dismiss, therefore, the question whether or not a conviction of guilty conduct is to go without any responsibility in damages, as argued by the British Counter Case, and we do not perceive any legal force in the arguments which the Counter Case adduces to this effect.

Hansard, third series, vol. clxxv, p. 496 ; App. to American Case, vol. v, p. 509. · Hansard, vol. cxc, p. 1150; App. to American Case, vol. v, p. 708.

Uleged condone.


The captures, it is said, were made by citizens of the United States. Of what avail here is that fact? Does the British Government intend to be understood as maintaining that all violations of neutrality on behalf of Rebels are taken out of the grasp of the law of nations? Is that to be held as the deliberate thought of Great Britain, the mistress of so many millions of discontented inhabitants of conquered States!

Next, it is said that the United States have condoned the muent by the United wrongs done to them by their Rebels, and “ that they have

been re-admitted to their former full participation in the rights and privileges of the Federal Constitution."

How does Great Britain know that, what right has she to know it, in a matter of Treaty obligations between the two Governments? If the consideration is of any force whatever, it strikes at the question whether Great Britain is responsible to the United States in case she did, or omitted to do, any of the actions forbidden or commanded by the Rules of the Treaty of Washington.

The Treaty does not provide by way of exception that if such acts done or committed in violation of neutral duty are done or omitted on behalf of Rebels, they shall involve no responsibility to the legitimate sovereign, or that such responsibility shall be measured by the more or less severity with which that sovereign shall see fit to treat his Rebels. On the contrary, the Rules are absolute in their terms, and adopted with specific reference to the questions of neutrality violateil to the advantage of Rebels and the disadvantage of their sovereign.;

Great Britain can set up no such defense. It involves considerations which she ought to have reflected on when she hastened to raise the Confederates into the status of international belligerents. In so doing she gave to them the means of doing injury to their sovereign, it is true, but for which that sovereign could and did take redress against them, when he saw fit, by exercise of the rights of war as well as the rights of sovereignty.

But Great Britain, by the course of policy she adopted, chose a condition, in which, whatever wrongs she or her subjects might suffer at the hands of the Confederates, she had no possible recourse, either against them or their sovereign; but in which she herself was responsible to that sovereign for whatever she might do in aid of such rebels, in violation of the law of nations or of Treaty.

Great Britain placed herself in that condition of her own free election, and against the will of the United States. She must take the consequences.

Her acts of actual or constructive complicity with the Confederates gave to the United States the same right of war against her as in similar circumstances she asserted against the Netherlands. We, the United States, holding those rights of war, have relinThe principle being thus admitted, no casuistry can serve to prevent its application to the present claims of the United States.

quished them to accept instead the arbitration of this Tri. substitutes damages bunal. And the Arbitration substitutes correlative legal

damages in the place of the right of war. This proposition is unequivocally admitted in the Counter Case as follows: Her Majesty's Government readily admits the general principle that, where an injury

has been done by one nation to another, a claim for some appropriate Reply to arguments redress arises, and that it is on all accounts desirable that this right

should be satisfied by amicable reparation, instead of being enforced by

war. All civil society reposes on this principle, or on a principle analogous to this; the society of nations, as well as that which unites the individual members of each particular commonwealth.

Page 130.

The arbitration

in the place of reparation by war.

in the British Counter Case.

That, as the Counter Case suggests, the instruments of the injury done were the cruisers and their officers and crews, is immaterial to the question. Responsibility for the acts of those cruisers, by the very terms of the Treaty, is imposed on Great Britain, if she be found in fault according to the agreed Rules.

If it were otherwise, then no responsibility could ever devolve on any Government for breaches of neutrality produced by its neglect; for the Goverument is not in its own person the actual cruiser which sinks and burns; it is, however, the constructive captor by the spirit and the letter of the Treaty.

The British Counter Case argues that Great Britain ought not to be held responsible for all the acts of the cruisers during the entire voyage of each, because they enjoyed hospitality in ports of other countries. Unfortunately for the argument, Great Britain never did anything to stop the cruisers, as she did in the affair of Terceira ; she continued to allow them to obtain supplies in her ports to the last, without which they could not have kept the seas; and although with knowledge of the positive guilt of the cruisers, by reason of their violation of her laws, she persisted in treating them as legitimate cruisers, when she might and should have arrested them whenever they entered into her jurisdiction, or have forbidden them to re-enter and practically outlawed them, as Brazil did, to punish the lesser act of abusing the hospitality of the Empire. But the neglect of duty on the part of Great Britain continued as to most, if not all, the cruisers of the Confederates to the very end.

The Counter Case argues that losses and specific captures, actually suffered by the United States, are not to be indemnified, because the liability of Great Britain disappears “among the multitude of causes, positive or negative, direct or indirect, distant or obscure, which combine to give success to one belligerent or the other.” If this argument were adduced to the question of the responsibility of Great Britain to the United States for the prolongation of the Rebellion, we could comprehend its meaning without admitting its application or force. But as applied to actual captures, and the loss thereby produced, the argument seems to be destitute of reason. On such premises no belligerent could be held to restitution of a wrongful capture, and no neutral could ever be held responsible toward either belligerent; for a “multitude” of secondary facts always enter into every discussion of responsibility for wrong, and especially for wrongs in time of war. The common sense of mankind oversteps all such immaterial incidents, and goes direct to the prime author of the wrong; the Government which wrongfully did, or wrongfully permitted, the act impugned, the expedition from her ports of the “floating fortress," as the Counter Case properly calls the wrongdoing instrument of the guilty Government.

Claims like the present, says the Counter Case, have rarely been made, and, as the British Government thinks, never conceded or recognized.

It might suffice to reply that no such case, on so large a scale, has ever occurred, except in the controversy between Great Britain and France in 1776, and then Great Britain declared war. But the precise question arose and was duly adjusted between the United States and Spain. And the relations of Governments do not depend on mere precedent, but still more on right.

The Counter Case deprecatingly doubts whether "the greatness of the loss is to be regarded as furnishing the just measure of reparation without regard to the venial character of the default.”


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