[89] *PART VII. THE GEORGIA AND SHENANDOAH. PART VII. - The andoah. Passing to the cases of the Georgia and Shenandoah, the tribunal has next to deal with two vessels, as to both of which it is not only clear that the British government had not, before Geortia and Shenthey respectively departed from its jurisdiction, any reasonable ground to believe that they were intended to cruise or carry on war against the United States, but it is also clear that they were not within its jurisdiction armed, fitted out, or equipped or specially adapted, either wholly or in part, to warlike use. THE GEORGIA. The Georgia. The Georgia, as the arbitrators are aware, was a vessel built at Dumbarton, in Scotland, and sent to sea from the port of Greenock in April, 1863. She had undergone, when completed, the customary surveys by the proper officer of the port of Glasgow, and is described by him as appearing to be intended for commercial purposes. Her frame-work and platings were of the ordinary sizes for vessels of her class. The tide-surveyor at Greenock, in like manner, 66 saw nothing on board which could lead him to suspect that she was intended for war purposes." The collector at Greenock adds, from his own observation, that she "was not heavily sparred; indeed, she could not spread more canvas than an ordinary merchant ship." In short, she was built, fitted up, and rigged as a ship of commerce, and not as a ship of war. Indeed, when the endeavor was afterward made to employ her as a cruiser, she was found upon trial to be not adapted for this purpose, and she was for that reason dismantled and sold before the end of the war, after having been at sea altogether about nine months. She was registered under the name of the Japan, in the name of a Liverpool merchant, and was entered outward, and cleared in the customary way, for a port of destination in the East Indies. She was advertised at the Sailors' Home in Liverpool as about to sail for Singapore; and her crew were hired for a voyage to Singapore or some intermediate port, and for a period of two years. The men, when they were hired, believed this to be the true destination of the ship, and her voyage to be a commercial one; and they appear to have continued under this belief until after the vessel had arrived off the coast of France. The number of her crew appears, from depositions furnished on the part of the United States to have been about fifty. In the case of the United States a description of the ship is given, without referring to the evidence on which it is founded. She is described, in one of the depositions obtained and produced by Mr. Adams, as "an iron vessel, very slightly built." There 1Appendix to British Case, vol. i, p. 404. 2 Appendix to Case of the United States, vol. vi, p. 512. is no reason whatever to believe that when she sailed from Greenock she had a magazine, or that her cabins or interior fittings were of any unusual strength. She had on board joiners who were fitting up her cabins when she left her anchorage. She was, therefore, when she left this country, a ship to which the first three rules mentioned in the sixth article of the treaty would not apply; nor was she a ship with which Her Majesty's government were under any obligation to interfere, according to any known rule or principle of international law.1 The assertion is repeated in this case that the service for which the vessel was constructed was "notorious." In proof of this the arbitrators are furnished with two anonymous letters published in an English newspaper in February, 1863, one of which contained no reference whatever to this or any vessel building or supposed to be building for the Confederate States, while the other declared that upwards of fifty were being built for the government of those States, and mentioned a "fine * screw-steamer," lying in the Clyde and called the Virginia, as re[90] ported to be partly owned by the confederates and partly by individuals at Nassau; adding, "it is publicly announced that she is soon to be employed on the line between Nassau and Charleston." An anonymous letter, mentioning a report that a particular vessel was destined for a blockade-runner, and was partly owned by the confederate government and partly by private individuals at Nassau, is thus adduced as proof that it was notorious that the same vessel was intended for a confederate cruiser. "Her destination," it is added, " rendered it certain" that she was to carry on war against the United States. Her destination, as we have seen, was Singapore. In this case again, as in others, the inquiry arises why no information of an enterprise described as having been so "notorious," and of such serious consequence to the United States, was furnished to Her Majesty's government or to the local authorities by the United States consul on the spot, or by Mr. Adams. The latter, it subsequently appeared, had "long been in possession of information about the construction and outfit" of the ship; but "nothing had ever been furnished to him of a nature to take proceedings upon." At all events he remained perfectly, silent till nearly a week after the vessel had sailed; and the arbitrators are now asked to decide that because the British government did not take, with respect to a vessel about which it was in entire ignorance, proceedings which Mr. Adams himself knew of no facts to support, Great Britain is guilty of a failure of international duty, and responsible for the consequences of it to the United States 66 It is next made a matter of complaint that, when informed that the Georgia had sailed, the government did not send a ship of war in pursuit of her. "The sailing and destination of the Japan," it is said, were so notorious as to be the subject of newspaper comment. No time, therefore, was required for that investigation. It could have been very little trouble to ascertain the facts as to the Alar," (the merchantvessel which carried out for her arms, officers, and men.)"The answer to a telegram could have been obtained in a few minutes. Men-of-war might have been dispatched on the 8th from Portsmouth and Plymouth to seize these violaters of British sovereignty." "This was not done.” The sole evidence produced in proof that the sailing and destination of the Japan were notorious on the 8th of April is an extract from a Liverpool paper published on the 9th, which mentioned a report that the ves 1 British Case, p. 122. 2 Case of the United States, pp. 392, 403; Appendix to ditto, vol. vi, p. 503. sel was intended for the confederate service, and had sailed "for unknown destinations." If recourse had been had to the navy, "it is probable," the arbitrators are told, "that the complaints of the United States might not have been necessary." They might have not been necessary if Mr. Adams had communicated in good time such information as he possessed, instead of keeping it undisclosed until six days after the sailing of the Georgia, and more than three days after the departure of the Alar, and if that information had tended to prove an actual or contemplated vio lation of the law. As it was, the intelligence of the departure of the Georgia, and the assertion (a bare assertion unsupported by any proof at all) that she was intended for the confederate service, were first communicated to the government on the 8th, coupled with the statement that "her immediate destination is Alderney, where she may be at this moment."That the Alar had sailed from Newhaven for Alderney and Saint Malo was at this time known to the board of customs, though not. known at the foreign office. "No investigation," the case proceeds, "was necessary." Mr. Adams's information ought to have been at onceassumed to be right-though it was very frequently wrong, and indeed was materially erroneous in the present instance. The cargo and destination of the Alar might have been ascertained "by telegraph. in a few minutes." Months had been insufficient, apparently, to enable Mr. Adams to acquaint himself with facts "of a nature to base proceedings on;" Her Majesty's government is to be allowed only a few minutes." The Alar, assumed to be putting to sea. on a secret and illicit errand, would naturally, it appears to be supposed, leave the particulars of her cargo and true destination in the possession of the revenue officers at Newhaven. A vessel of war dispatched from Portsmouth or Plymouth on the 8th to Alderney (the place designated by Mr. Adams) would, it is further assumed, have been able. to find the Georgia at Ushant, which is not less than 150 miles off and in a very different direction, and to find her before she left that coast on the 9th or 10th. Her Majesty's government must be permitted to observe that a celerity and activity of movement are by this hypoth esis attributed to Her Majesty's ships which would be nothing less. than extraordinary. But it seems, besides, to be forgotten that Ushant and its territorial waters are not within the dominions of Her Majesty. They are close to the coast of France, and within the dominions of that power; and, even if it had been the duty of the British Government to institute a pursuit on the high seas of vessels not shown to have committed any offense either against British law or against the law of nations, a seizure of them in French waters would have been, as plain a violation of the sovereignty of [91] France, as that of the Chesapeake in December, 1863, *within the waters of Nova Scotia, by a United States cruiser, was a vio lation of the sovereignty of Great Britain. That an error had been committed in the latter case was acknowledged by the United States; the British government would, certainly decline in a like case to commit a similar error. But the arbitrators are already aware that the British authorities did the very thing which they were accused of not having done. Earl Russell did not order inquiries only; he did order action. A ship of war was in fact sent to Alderney, not indeed from Portsmouth or Plymouth, but from Guernsey, to prevent any attempt which might be made to violate the foreign-enlistment act within British waters, only, however, to find that Mr. Adams's information as to the immediate destination of the suspected vessel had been wrong. Having delayed till too late giving any information to the British government about this ship, and having then given information which was erroneous, the United States would fain have the arbitrators assume that it was the duty of this government to employ its naval forces in searching for and pursuing her on the high seas, and even in foreign waters. There is no pretense for the suggestion of such a duty. No such duty has been acknowledged by the United States themselves, nor by any other power. Yet it is impossible to deny that the British gov ernment did act in this matter with promptitude and alacrity, scanty though the information was, and quite unsupported by proof, and too late, though, it probably was for any effectual measures. Unable to establish against Great Britain any failure of duty in this respect, the United States attempt to found a claim on the facts that no punishment which appears adequate to the Government of the United States was inflicted on the persons concerned in fitting out the Georgia, and that she continued for some months to be registered as a Britishowned ship. It is true that these arguments are evidently advanced with little confidence, but that they should be suggested at all is to Her Majesty's government a matter of some surprise. Her Majesty's government is compelled to ask whether it is seriously contended by the Government of the United States that the Georgia, "though nominally cruising under the insurgent flag and under the direction of an insurgent officer," was all the time really controlled and owned by a British subject. Is it not, on the contrary, certain that even while Bold's name remained on the register as that of her nominal owner, the real ownership and control was in the confederate govern ment? Does the Government of the United States seriously contest this? Has it any serious doubt of it? Her Majesty's government is unable to believe that it has. But even could it be shown that Bold was the actual, instead of being the nominal, owner; that the confederate flag was (as seems to be suggested) merely used to cover the acts of Bold and his agent, the confederate officer; and that the ship was therefore in truth and fact piratical, this would impose no responsibility on the British government. It cannot be maintained on the part of the United States that a government is to be held responsible for acts, whether of war or of piracy, done out of its jurisdiction and beyond its control, on the ground that the vessel by whose instrumentality they were committed was either nominally or really the property of one of its subjects. Certainly there is no power in the world by which this proposition has been more explicitly or resolutely denied. But this is not all. If the argument be (as it is) untenable on general principles, what are we to think of it when we find that the very ship, which is asserted to have been British all along, was actually captured after she left Liverpool, and when plying as a merchant-ship, on the ground that she was a confederate ship of war, and could not, even by a regular sale in a neutral port, pass into the possession of a British owner and into the British mercantile marine? She is not British when the question is, whether she is to belong to a neutral who has bought and paid for her, or to be seized and appropriated by the United States. She becomes British again (but not, so far as appears, for the benefit of her former British owner) when it is supposed to be possible to found on her alleged British character a claim against Great Britain. Of the complaint that she was suffered to remain in port for the pur pose of being dismantled and sold, it is only necessary to say that, even could this be shown to be (what it clearly was not) an erroneous or improper indulgence on the part of the British authorities, it was not a failure of duty from which any injury arose to the United States it could not, therefore, be made the foundation of a claim, and is not properly within the scope of the reference to the tribunal. Her Majesty's government has never before heard it suggested that a government which forbears to institute prosecutions against all the persons who may have been concerned in fitting out or manning a particu lar vessel for the naval service of a belligerent, or may themselves [92] have served on board of her, becomes, on that account, *respon sible for the losses which she may have been instrumental in inflicting on the other belligerent; and it fails to see how those losses can be attributed to the subsequent forbearance to prosecute. The consequences to which such a principle, if pursued, would lead, cannot be unknown, certainly, to the Government of the United States. It is true, indeed, that when a succession of criminal enterprises, openly undertaken against the peace and security of a friendly country, are suf fered to remain unpunished, the encouragement which such impunity holds out to subsequent enterprises of a like kind is a proper subject of grave remonstrance, and may, if remonstrance be unheeded, justify the injured nation in resorting to measures of self-redress. But Her Majes ty's government has always been cautious in the exercise of this right of remonstrance, being aware that it is often difficult to obtain a convietion for offenses of this class, and that the difficulty may be even enhanced by any attempted severity of punishment; and being sensible. also that such questions must, in general, be left, in every country, to the independent action of the executive and judiciary authorities, with out external interference. In the case of the Georgia, prosecutions were in fact instituted against the only persons against whom there appeared to be any reasonable prospect of substantiating a charge and obtaining a conviction. As to the sentence pronounced, that is generally a matter over which the government has no control. The law leaves it, within certain limits, to the discretion of the judges, over whom the government has no power. It is not alleged by the United States that a penalty inflicted by a judge was, in any case, remitted by an act of the executive. There otten may be, and in this case there were, good reasons, in the interest of the law, for resting satisfied with a moderate sentence, rather than raise difficult and inconvenient questions as to the construction of an act of Parliament. Before proceeding to the case of the Shenandoah, it is right to recall the fact that, during the year 1863, the attention of Her Majesty's government was directed to many vessels building or fitting out in British ports, and suspected of being intended for the naval service of the Confederate States. An account of all these has been laid before the arbitrators in the British case. It has been seen that, of twelve suspected vessels, four were seized and effectually prevented from being applied to their contemplated purpose; while in the eight remaining cases no reasonable grounds of suspicion were found on examination to exist, which would have justified the government in interfering, and none of them were, in fact, ever armed or used for purposes of war. It has been seen that, in every instance, directions were given, without the least delay, for investigation and inquiry on the spot by the proper officers of government; that, in some cases, these inquiries were ordered |