We deny that there is here any actual question of default of "venial character." The defaults charged, and, as we think, the defaults proved, are grave, serious, capital. And we deny that there is any possible question of the "venial character of the defaults," or that the loss can be measured by any such consideration. Punishment by penal laws may be graduated in this way, according to the greater or less degree of guilt; but indemnity for wrong cannot be: if you destroy my ship, my house, or my horse, by culpable carelessness, it is no answer to say that you might have been more careless-nay, that you might have acted with deliberate malice.

follow injury.

If there be responsible wrong, whether it be the greatest possible Indemnity should wrong, or a degree less than the greatest possible, still the indemnity follows as a legitimate and just consequence. Such, indeed, is the tenor of the Treaty, which attaches responsibility to mere want of "due diligence," and does not require that Great Britain should have been guilty of the utmost conceivable degree of willful negligence which could by possibility be committed by any Government.

gross.

(f) The Case of the United States desires the Tribunal to award a Award of a sum in sum in gross in reparation of the losses complained of; and the Counsel request this, assuming the Tribunal shall be fully satisfied that the said losses are properly proved indetail, and that the sum total thereof, as claimed, is due by Great Britain.

In that contingency the Counsel assume that interest will be awarded by the Tribunal as an element of the damage. We conceive this to be conformable to public law, and to be required by paramount considerations of equity and justice.

It should include interest.

Numerous examples of this occur in matters of international valuation and indemnity.

Canada.

Thus, on a recent occasion, in the disposition by Sir Edward ThornThe case of the ton, British Minister at Washington, as umpire, of a claim on the part of the United States against Brazil, the umpire decided that the claimants were entitled to interest by the same right which entitled them to reparation. And the interest allowed in this case was $45,077, nearly half of the entire award, ($100,740.)

So in the case of an award of damages by the Emperor of Russia in Award under the a claim of the United States against Great Britain, under Treaty of Ghent. the Treaty of Ghent, additional damages were awarded in the nature of damages from the time when the indemnity was due.2 In that case Mr. Wirt holds that, according to the usage of nations, interest is due on international transactions.

Jay treaty.

In like manner, Sir John Nicholl, British Commissioner in the adjustAward under the ment of damage between the United States and Great Britain, under the Jay Treaty, awards interest, and says: To re-imburse to claimants the original cost of their property, and all the expenses they have actually incurred, together with interest on the whole amount, would, I think, be a just and adequate compensation. This, I believe, is the measure of compensation usually made by all belligerent nations for losses, costs, and damages occasioned by illegal captures.3

(g) If the Arbitrators are not satisfied with the proofs presented by the United States, and entertain doubt as to the sums to be awarded in each case of private loss occasioned by Confederate cruisers, as to which the responsibility of the British Government

Contingent reference to assessors.

1 Indemnity case of ship Canada, United States Documents, December 15, 1870, p. 153.

2 Opinion of Attorney-General of the United States, vol ii, p. 20.

3 Ibid., p. 31. See also Story, Conflicts of Laws, § 307.

attaches according to the Rules of the Treaty, then the Counsel of the United States respectfully submit that it may be the duty of the Tribunal, after finding the fact of the fault of Great Britain in the premises, to refer the assessment of the damages to the Assessors provided for by Article X of the Treaty, with such instructions as to the extent of the liability as the Tribunal shall see fit to give to such Assessors.

We cannot admit that Great Britain shall appoint ex-parte Assessors to control the statements and proofs of the United States. That she in effect undertakes to do in the arbitrary estimates of officials or private persons contained in her Counter Case, as in the nature of proofs contradictory of the official statements and private affidavits or other proofs presented by the United States. If these formal statements on the part of the United States do not suffice, and estimates are needed, the Counsel of the United States respectfully insist that such assessments must be made by the official Assessors of the Treaty.

(h) In the Appendix to this Argument will be found special discussion of the merits of these claims of private persons with reference to the criticism of the British Counter-Case thereon,

Claims of private persons.

to which we respectfully solicit the attention of the Tribunal. (See Appendix to this Argument, Note D.)

We come now to the class of claims, some private, some general, which in recent discussions between the two Governments are The indirect claims. objected to by Great Britain as being "indirect."

These are:

(1) The enhanced rates of insurance in the United States, occasioned by the Confederate cruisers in question, involving great Enhanced rates of pecuniary loss to the citizens of the United States.

insurance.

Certain it is, this injury was actual, and a loss "growing out of the acts" of the Confederate cruisers by necessary relation of cause and effect, and it followed immediately on the appearance of those cruisers. (2.) Transfer of the maritime commerce of the United States to Great Britain.

This was a national loss "growing out of the acts" of the cruisers, and having them for its distinct and sole cause.

Transfer of United States commerce to British flag.

It was a loss to the United States constituting gain to Great Britain. We do not say that she was culpably negligent of the obligations of neutrality in order that she might thus gain thereby, but we do say that the loss to us, and the gain to her, were the necessary and immediate effect of her negligence in that respect.

(3.) The prolongation of the war of Rebellion in the Prolongation of the United States.

war.

The admitted gravity of the injury thus suffered by the United States, and the supposed enormous magnitude of the sum requisite to indemnify the United States in the premises, have caused this head of claim, as stated in the American Case, to be conspicuous in the recent discussions between the two Governments, and to become the subject of special commentary on the part of eminent publicists and public men in Europe.

It is the claim which presents itself to the minds of all as the "indirect claims" of the United States.

Whatever we may further have to say regarding the distinction of indirect and direct, in the consideration either of the general or of the particular question of damages, we desire to have regarded as applicable mainly to this claim.

In stating our views of the general subject of damages we frankly recognized the existence of the distinction in law between damages

proximate or direct and damages remote or indirect, admitting the force and the validity of the distinction.

Whether too re

tion to be determin

But we took care to state at the same time that the distinction is altogether uncertain, not to say, in many cases, shadowy; mote for considera that the dividing line can no more be drawn in the abstract ed by the tribunal. than the line between the contiguous colors of the spectrum; and that in private controversies the attempt to make the discrimination generally results in a question of fact for the determination of the competent tribunal.

The idea is well expressed by Mr. Pradier Fodéré, as follows:

dier Fodere.

Mais l'élévation des primes d'assurance amenée par les déprédations certaines et répétées de corsaires, mais la prolongation de la guerre due aux succès Views of M. Pra de ces derniers, pourraient être, sans trop forcer l'appréciation, considérées comme des suites prochaines, et, sinon nécessaires et uniques, du moins naturelles, de la faute du neutre. Il y a là, du reste, une série de considérations à peser, à étudier. La règle absolue, c'est qu'on ne peut équitablement et raisonnablement imposer la responsabilité des dommages indirects. Mais étant donnés tels dommages causés et éprouvés, quels d'entre eux sont directs, quels sont indirects? On ne peut pas le dire d'avance: c'est une question à examiner, en descendant dans les détails et en discutant les causes de chaque dommage.'

What M. Pradier Fodéré says in this respect is fully justified by all the special discussions of the question in the jurisprudence of Great Britain and the United States, as well as of other countries of Europe and America. The well-considered treatise of Mr. Mayne, and the still ampler and more complete treatise of Mr. Sedgwick, contain abundant proof on this point.

The Counter Case of the British Government exhibits an apt illustration of this point, in arguing that even the claims for property actually destroyed by the Alabama are indirect claims, and therefore to be rejected by the Tribunal. It is not worth while to add to what we have already said on that argument. We suppose it assumes that negligence is the cause and escape the direct effect, so that the captures are the indirect effect; which is equivalent to saying that he who by malice or gross negligence discharges a loaded gun into a crowd is not responsible for the deaths or wounds he inflicts, because the injury done is the effect of the action of the ball, which is a secondary cause, and not of the act of negligence or malice which did but apply a match to the gun. The Counsel of the United States would not need to have recourse to General considera- any such subtleties to show that the acts of the Confederate cruisers inflicted an injury on the United States in contributing to the prolongation of the war, and that such injury was a direct injury of Government to Government. Nor would it be any answer to say that this injury was but a contributing fact among other and even greater causes of the damage.

tions.

Nor would it suffice to reply that the exact amount of the damage is difficult to fix. When a traveler is injured by reason of want of due diligence on the part of the managers of a railroad, it is no defense to say that it is difficult to fix the true value of his arm or his leg, or the money compensation of a long fit of sickness. That is a problem, like others of the same nature, which finds its solution every day in the ordinary courts of justice of all countries.

One nation invades another, and inflicts losses by acts of war on land. If they choose to make peace on the condition of the invader indemnifying the losses of the invaded, the sum which ought to be paid is debatable; but certainly it can be determined. So if two co-operating nations invade another, the sum of injury done by one of them as dis

Pradier Fodéré, La question de l'Alabama, p. 37.

tinguished from the other is determinable, if not with exactness, yet approximately, like most other unliquidated damages; to say nothing of the question of exemplary damages in the cases of tort, which run together in the discretion and conscience of the competent tribunal.

But there is war on sea as well as on land. A war may be exclusively maritime, like that between France and the United States. Such a war consists in the combat or capture of ships. Yet such a war inflicts national injuries and losses independent of the value of vessels destroyed, and if terminated by the payment of indemnities for the cost of the war, either by one or by several parties belligerent, the sum of the reparation can be calculated and determined.

Such is the relative predicament of Great Britain and the United States. We have been injured as a nation by acts of a maritime war happening, as the Counsel think they have proved, by the culpable and responsible negligence of the British Government. The wrong is direct as between the two nations.

We think we have distinct right of substantial indemnity in this behalf.

When a nation inflicts a wrong on a nation, is it due reparation to pay the price of certain ships destroyed? Surely not, any more than the fine paid by the wealthy Roman to repair the insults he inflicted on every person he met in the forum.

damages.

do

But considerations of large import in the sphere of international relations, of which the Government of the United States is United States the rightful judge, forbid their Counsel to press for extreme not desire extreme damages on account of the national injury thus suffered by the nation itself, through the negligence of Great Britain. Nevertheless, holding that in view, we have maintained in this Argument the plentitude of the jurisdiction of the Tribunal, because, in the judgment of the United States, such is the tenor and intent of the The jurisdiction of Treaty of Washington; and because they desire the judg the question belongs ment of the Tribunal on this particular question, for their own guidance in their future relations with Great Britain.

to the Tribunal.

They contend that the question of damages, as whether direct or indirect, is a juridical one, not one of the Treaty.

The United States did not insist on the absolute generality of scope which distinguishes the Treaty, with unreasonable expectations of having extravagant damages awarded by the Tribunal. Their object was a higher one, and one more important to them, and, as they conceived, to Great Britain.

It is not for their interest to exaggerate the responsibilities of neutrals; but only, in the sense of their action in this respect throughout their whole national life-time, to restrain the field of arms and enlarge that of peace, by establishing the rights and the duties of neutrality on a basis of truth and justice, beneficial in the long run to all nations.

If, as a juridical question under this Treaty, the Tribunal shall conclude that Great Britain is not bound to make reparation to the United States for general national injuries occasioned by the negligence of the British Government to fulfill neutral obligations in the matter of Confederate cruisers, it will say so; and, in like manner, if, as a juridical question, under the Treaty, the Tribunal shall conclude to the contrary and award damages in the premises, the United States will accept the decision as a final determination of the fact and the public law of the questions arising under the Treaty.

The United States desired that the Treaty should be a full and final

Without an adju dication upon there will not be a

differences.

settlement of all differences between the two nations, which it would not have been if the larger national claims, so long full settlement of all and so steadily insisted on by us, had been excluded from the scope of the Treaty, and so left to be a recurring subject of grief and offense in the minds of the people of the United States. They desired also that great principles of neutral obligations and neutral duty should issue from this High International Tribunal, representing five great Constitutional Nations, to serve as instruction and example to all nations, in the large interests of civilization, of humanity, and of peace.

We, the Counsel of the United States, have acted accordingly, in the advocacy of the rights of the United States; earnestly and positively maintaining the principles involved in this Arbitration, but regarding the mere question of the amount of national damages to be awarded as secondary to the higher consideration of the welfare and the honor of the United States.

Conclusion.

We now bring to a close this Argument on behalf of the United States, "showing the points and referring to the evidence" which we think should lead to an award by the Tribunal of reparation and indemnity from Great Britain, commensurate with the injuries the United States have suffered and the redress they are entitled to demand.

We shall not find in recent history any example of two powerful nations, with so weighty a matter of difference between them, submitting the measure of right and wrong, of injury and redress, in the great controversy, to any intermediary arbitrament. When their own reason and justice did not enable them to concur in accepting a fit solution of the grave dispute it has too often been left to work ill-will and estrangement between them, or led to open rupture of their peace.

The benevolent and sagacious counsels of the two governments have triumphed over the obstacles and resisted the dissuasions which have heretofore proved too strong to be overcome, and the success of this great example, so full of promise of peace and justice among nations, now rests with the Tribunal.

In the wise administration of this elevated and benign trust, for the welfare of the world confided to this august Tribunal, the Arbitrators will find no surer guide or support than a consideration of the ill consequences which would follow from a disappointment of the high hopes which, on all sides, attend this great experiment.

So far as the parties to this controversy are concerned, they are equally interested that the award should receive the moral acceptance of the people of both nations, as an adequate and plenary settlement of the matter of difference between them.

The people of the United States have definitely formed their opinions as to what the action of Her Majesty's Government, now under judgment, was, as matter of fact, and as to the magnitude and permanence of the injuries which they, their property, and their prosperity, have suffered therefrom. They naturally look, therefore, with chief interest to the award of this Tribunal as a decision upon the question of the rightfulness of such action of Her Majesty's Government, and by consequence of the rightfulness of such action in the future, should occasion arise for its imitation by the United States or other Powers.

This principal question having been determined, if Great Britain is held responsible for these injuries, the people of the United States expect a just and reasonable measure of compensation for the injuries