ment on a question of at least reasonable doubt, but that it was a plain violation of a known and established rule. It would be impossible to maintain this with any semblance of reason. In truth, the colonial authorities acted rightly.

to

ed to Confederate

ports.

111. It is further suggested by the United States that these vessels, when admitted into ports of the British Colonies, were al- Complaint as lowed to enjoy there facilities and advantages which were hospitalities accordnot accorded to armed vessels of the United States. And cruisers in British (since it is evident that mere partiality, though it would be à deviation from neutrality, and, as such, a proper subject for remonstrance, would not supply a ground for such claims as those of the United States) it is also contended that these facilities and advantages were such as by the rules of international law no neutral may concede to any belligerent, and that they enabled or assisted the Confederate cruisers to inflict the losses on which the United States found their claim against Great Britain.

112. It has been clearly shown, on the contrary, in the British Counter Case, not only that the particular restrictions for which the United States contend as imposed by international law had in reality no existence, were not known to that law, and are not deducible from the three Rules of the Treaty of Washington, (Counter Case, Part II, pp. 15, 16;) but it has likewise been amply proved by a detailed examination of the facts, that all the complaints of the United States on this score are devoid of the slightest foundation; that the British Colonies, though occasionally resorted to by Confederate ships, were by far more largely and more freely used by armed vessels of the United States; that no partiality whatever was shown to the former; and that, if infractions of the Queen's Regulations were sometimes committed, the United States cruisers were the more frequent offenders; lastly, that the treatment of Confederate cruisers in British ports was essentially the same as that which they received in the ports of other neutral nations, and by no means more lax or indulgent. (Counter Case of Great Britain, Part IX.)1

claims of the United

113. It has thus been made manifest that the complaints of the United States, notwithstanding their number, the charac- Review of the ter of gravity which has been ascribed to them, and the grounds on which the warmth with which they have been urged, reduce them- States rest. selves when examined to a very small compass. After all charges which are irrelevant, plainly inadmissible, or absolutely trivial, have been set aside, there remain only some allegations, (which Great Britain contends are erroneous,) applicable, at the most, to one or two isolated cases of unintentional delay or mistaken judgment on questions new and doubtful, on the part either of the Government itself or of sub

It is stated in the Counter Case of the United States, sec. v, par. 5, that "it appears in clear colors that Bermuda was made a base of hostile operations by the Florida. The commander of that vessel having coaled, and having been at Barbados within less than seventy days, and having then cruised off the port of New York destroying American vessels, arrived at Bermuda and informed the Governor of all these facts. The Governor, with a knowledge of them, gave him a hospitable reception and permitted him to coal and repair." This passage might lead to the impression that the Florida had coaled at Barbados within seventy days of her arrival at Bermuda, but this was not the fact. The Florida coaled at Barbados on the 24th of February, 1863. (Appendix to British Case, vol. i, p. 91.) She did not arrive at Bermuda till the 15th of July following, nor did she coal at any British port in the interval. On his arrival at Bermuda, her commander stated that he had been at sea seventy days, with the exception of visits to the Havana, Barbados, and a port in the Brazils, each of which had occupied less than twenty-four hours. (Appendix to British Case, vol. i, p. 108.) No coal was taken in at Barbados on this second visit.

ordinate officials in Great Britain or in distant colonies and dependencies. The multiplied and heavy claims which the United States make against Great Britain rest on this slender foundation.

114. The British Government will here repeat some observations which it has already presented to the consideration of the Arbitrators:

A charge of injurious negligence on the part of a sovereign Government, in the exercise of any of the powers of sovereignty, needs to be sustained on strong and solid grounds. Every sovereign Government claims the right to be independent of external scrutiny or interference in its exercise of these powers; and the general assumption that they are exercised with good faith and reasonable care, and that laws are fairly and properly administered-an assumption without which peace and friendly intercourse could not exist among nations-ought to subsist until it has been displaced by proof to the contrary. It is not enough to suggest or prove that a Government, in the exercise of a reasonable judgment on some question of fact or law, and using the means of information at its command, has formed and acted on an opinion from which another Government dissents or can induce an Arbitrator to dissent. Still less is it sufficient to show that a judgment pronounced by a court of competent jurisdiction, and acted upon by the Executive, was tainted with error. An administrative act founded on error, or an erroneous judgment of a Court, may, indeed, under some circumstances, found a claim to compensation on behalf of a person or Government injured by the act or judgment. But a charge of negligence brought against a Government cannot be supported on such grounds. Nor is it enough to suggest or prove some defect of judgment or penetration, or somewhat less than the utmost possible promptitude aud celerity of action, on the part of an officer of the Government in the execution of his official duties. To found on this alone a claim to compensation, as for a breach of international duty, would be to exact, in international affairs, a perfection of administration which few Governments or none attain in fact, or could reasonably hope to attain, in their domestic concerns; it would set up an impracticable and, therefore, an unjust and fallacious standard, would give occasion to incessant and unreasonable complaints, and render the situation of neutrals intolerable. Nor, again, is a nation to be held responsible for a delay or omission occasioned by mere accident, and not by the want of reasonable foresight or care. Lastly, it is not sufficient to show that an act has been done which it was the duty of the Government to endeavor to prevent. It is necessary to allege and to prove that there has been a failure to use, for the prevention of an act which the Government was bound to endeavor to prevent, such care as Governments ordinarily employ in their domestie concerns, and may reasonably be expected to exert in matters of international interest and obligation. These considerations apply with especial force to nations which are in the enjoyment of free institutions, and in which the Government is bound to obey, and cannot dispense with, the laws.1

Character of the

States.

115. What, then, are the claims which, on these slight and unsubstantial grounds, the United States have presented to the triclaims of United bunal? They are claims for the value of all captures made by all the ships enumerated in their Case-nay, even (as it would seem) for all captures whatever ascertained to have made by confederate armed ships during the war; for all losses inflicted by them which the American citizens who have suffered thereby may think proper to ask to have charged against Great Britain; and, further, for the expenditure alleged to have been incurred in trying to capture those ships or to protect United States commerce against them.

Observations on

ineasure of compensation.

116. The British Government has thought it right to present to the notice of the arbitrators some considerations, which it bethe principle and lieves to be just and material, directed to show that any claims of this nature for losses in war, alleged to have been sustained through some negligence on the part of the neutral, are, in principle, open to grave objections. It has been observed that the alleged default of the neutral, even if it be established, is not, in any true or proper sense, the cause of the loss to the belligerent; certainly, it is in no sense the direct or active cause; that the only share in producing this loss which can be attributed to the neutral is indirect and passive, and consists in mere unintentional omission; that

1 British Case, pp. 166-7.

to ascertain with any approach to precision what that share really had been would be in almost all cases difficult, and in many impossible; that there is no precedent for such claims, and that any argument which can be derived from the treaty of 1794, and the proceedings of the commissioners under it, militates against them. It was further pointed out that the relation actually held toward the United States by the people of the Confederate States, who were the active agents in inflicting the losses complained of, and by whom, according to the reasoning of the United States themselves, the neutrality of Great Britain was violated or eluded, is itself an argument against these demands. These States are part of the Union, and would share in any benefit which would accrue to its public revenue from whatever the arbitrators might award to be paid by Great Britain. On what principle of international equity, it was asked, can a Federal Commonwealth, so composed, seek to throw upon a neutral, assumed at the most to have been guilty of some degree of negligence, liabilities which belonged in the first degree to its own citizens, with whom it has now re-entered into relations of political unity, and from which it has wholly absolved those citizens?1

117. Supposing, however, the question of compensation to arise, and supposing the arbitrators to be of opinion that claims of this nature are not altogether inadmissible in principle, it has been maintained, on the part of Great Britain—

That the losses which may be taken into account by the arbitrators are at the utmost those only which have directly arisen from the capture or destruction, by one or more of the cruisers specified in the case of the United States, of ships or property owned by the United States, or by citizens of the United States, and that the extent of the liability of Great Britain for any such losses cannot exceed that proportion of them which may be deemed justly attributable to some specific failure or failures of duty on the part of her Government in respect of such cruiser or cruisers;

That it is the duty of the arbitrators, in deciding whether claims for compensation in respect of any particular default are tenable, and on the extent, if any, of liability incurred by such default, to take into account, not only the loss incurred, but the greater or less gravity of the default itself and all the causes which may have contributed to the loss, and particularly to consider whether the alleged loss was wholly or in part due to a want of reasonable activity and care on the part of the United States themselves, to an omission on their part to take such measures as would have prevented or stopped the depredations complained of, and conduct the operations of war, proper for that purpose, with the requisite degree of energy and judgment;

That the claims for money alleged to have been expended in endeavoring to capture or destroy any confederate cruiser are not admissible together with the claims for losses inflicted by such cruiser;2.

That the claims for interest are clearly inadmissible. The demands of the United States are not for a liquidated sum, payment of which has been delayed by the fault of the debtor. They are a mass of doubtful claims, of unascertained amount, which have been a subject of negotiation, which Great Britain has long been willing to refer to arbitration, and which would have been so referred, had not obstacles been repeatedly interposed by the United States; 3

British Counter Case, p. 132.

2 Ibid., p. 140.

3 Ibid., p. 141.

That, should the tribunal award a sum in gross, this sum ought to be measured solely by the extent of liability which the tribunal may find to have been incurred by Great Britain on account of any failure or failures of duty proved against her.1

118. These propositions appear to Great Britain too clear to need the support of argument. It is evident that should the arbitrators be satisfied that, as to any ship and in any particular, there has been a clearly ascertained default on the part of Great Britain, it would then become their duty to examine wherein the default consisted, and whether it was a just ground for pecuniary reparation; and, if so, to determine the general limits of the liability incurred, having regard both to the nature and gravity of the default itself and the proportion of loss justly and reasonably assignable to it. The liability thus determined, or the aggregate of such liabilities, as the case may be, constitutes, it is evident, the only just measure of the compensation, if any, to be awarded to the United States. The basis of the award must be the fact, established to the satisfaction of the arbitrators, that certain losses have been sustained on the one side, which are justly attributable to certain specific failures of duty on the other, in respect of a certain ship or ships; and the basis of the award must also be the basis for computing the sum to be awarded. The power of awarding a gross sum does not authorize the arbitrators to depart, in substance, from this basis, although it may relieve them from the necessity of a minute inquiry into the particulars of alleged losses and from intricate and perhaps inconclusive calculations.

The only question which can arise, should the tribunal be satisfied that Great Britain has failed in the discharge of any international obligation toward the United States, is, what, if any, compensation in money would afford a just reparation for the loss caused by that default? International law, while it recognizes the obligation, as between sovereign States, to redress a wrong committed, knows nothing of penalties. Two alternative modes of ascertaining the amount have been provided by the treaty. But, which mode soever it may be found convenient to pursue, the question continues to be in substance the same; for the foundation of the award must remain the same, (some specific failure or failures of duty, alleged and proved to the satisfaction of the Tribunal,) and the principle of calculation, therefore, is, of necessity, the same. What is due from Great Britain? would be the question for the arbitrators; what is due from Great Britain ? would, in like manner, be the question for the board of assessors, and justice would as clearly forbid that more than what is due should be awarded by the former as that less should be awarded by the latter.

119. Lastly, it has been shown by a fair and careful examination of the various classes of claims presented by the United States, so far as such an examination was possible in the absence of the necessary materials, (which the United States have not furnished,) that the estimates of losses, private and public, which have been laid before the Tribunal, are so loose and unsatisfactory, and so plainly excessive in amount, that they cannot be accepted as supplying even a prima-facie basis of calculation. It has been likewise shown that the estimates of expenditure were the claims on that head to be considered admissible, are also too unsatisfactory to serve a similar purpose.2

Some new matter being contained in the revised list of claims ap

1 British Counter Case, p. 132.

2 British Counter Case, Part X, pp. 134-141; Appendix to British Case, vol. vii.

pended to the Counter Case of the United States with reference to these points, Her Majesty's Government has thought it most convenient to embody their further views and arguments on this part of the subject in a further report from the committee appointed by the Board of Trade, which constitutes the Annex (C) to this argument. A further note on the claims presented by the Government of the United States for expenditure alleged to have been incurred in the pursuit and capture of the confederate cruisers is also appended as Annex (D.)

120. With reference to the question of compensation, it has been observed that it would be unjust to hold a neutral nation liable for losses inflicted in war, which reasonable energy and activity were not used to prevent, on the plea that the vessels, which were instrumental in the infliction of the loss, were procured from the neutral country, even though it may be alleged that there was some want of reasonable care on the part of the neutral government. The utmost period over which a liability once established on the ground of default could be extended on any rational principle would be that which must elapse before the aggrieved belligerent would, by the use of due diligence and proper means on his own part, have the opportunity of counteracting the mischief. The United States seem to take exception to this position. To Great Britain it appears to be just and reasonable in itself, to be supported by sound legal principles and analogies, and to be a necessary limitation of claims of this nature, should they be considered admissible in principle.

Conclusion.

121. The British government has been compelled, therefore, to take notice of the inefficiency of the measures which were adopted by the Government of the United States during the war to protect their commerce at sea and prevent the losses of which they now complain-losses sustained from ordinary operations of war, the whole burden of which the belligerent seeks, now that the contest is at an end, to transfer to a neutral nation. It can hardly be doubtful that these would have been in great measure averted, if the naval resources of the United States had, at the time, been employed with reasonable activity for the purpose.2 122. It is not, then, without reason that the British government has, in the concluding paragraphs of its Counter Case, described the claims which the tribunal is asked to sanction by its award as of grave and serious consequence to all neutral nations. In truth, it is not too much to say that, were they to be affirmed as the United States have presented them, and were the principles on which they have been framed and argued to obtain general acceptance, the situation of neutral powers would be entirely altered, and neutrality would become an onerous and, to the less powerful states, (such, especially, as cherish the freedom of commerce and have free institutions,) an almost impossible condition. It is the interest of all nations that the recognized duties of neutrality should be discharged with good faith and reasonable care; and Great Britain requires of others in this respect nothing which she is not ready to acknowledge herself equally bound to perform. But it is likewise the interest of all nations, and in a still higher degree, that these duties should be as little burdensome as possible.

123. The question submitted to the tribunal is not whether the subordinate officials of the British government, or even the government itself, might or might not, on some occasions during the war, have acted with greater dispatch or with better judgment. Nor has it to

1 British Counter Case, p. 140.

2 Ibid., part X, pp. 138-140.