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States. There were also the Boston and the Sallie, which are included (without any apparent reason) in the summary of claims contained in volume vii of the Appendix to the Case of the United States, but of which, in the case itself, no mention is made.

It will not have escaped the notice of the arbitrators that the cases of the Florida and Alabama occurred at a very early period of the war. That of the Florida occurred in the first year of it; that of the Alabama very soon afterward, and before the true character of the Florida, or the purpose for which she was destined, was or could be known in England. In dealing with a charge of negligence brought by one nation against another, this is a material fact. A government which finds itself compelled, by the outbreak of civil war in another country, to assume the character of a neutral, must learn, by practical experience, the necessity for various measures of precaution which were never called for before. The United States, therefore, find it necessary to allege more than this, and to charge the British government with a want of promptitude and activity continued after circumstances had proved this need of unusual precautions. And, in connection with this charge, and as a proof of it, they have dwelt on the fact that no alteration was made, during the war, in the laws of Great Britain, although the Government of the United States is alleged to have asked that these laws might be made more effective.

Her Majesty's government has to observe upon this point that the United States have failed, or forborne, to point out wherein the law of Great Britain required alteration, and this for a very plain reason.

The law of Great Britain on this subject was stricter and more comprehensive in some of its prohibitions, and more severe in some of its penalties, than the corresponding law of the United States; and, except in those points in which the British law was of superior efficiency, both were substantially the same. The first suggestion of any alteration of the law proceeded, not from Mr. Adams, (who, in the case of the Ala

bama, had stated, on the 9th October, 1862, that he based his [128] representations "upon evidence which applied directly to infringements of the municipal law itself, and not to anything beyond it," but from Earl Russell, who, on the 19th December, 1862, wrote thus to Mr. Adams:

I have the honor to inform you that Her Majesty's government, after consultation with the law-officers of the Crown, are of opinion that certain amendments might be introduced into the foreign-enlistment act, which, if sanctioned by Parliament, would have the effect of giving greater power to the executive to prevent the construction, in British ports, of ships destined for the use of belligerents. But Her Majesty's government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the Government of the United States, and ascertain whether that Government is willing to make similar alterations in its own foreign-enlistment act, and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries. I shall accordingly be ready to confer at any time with you, and to listen to any suggestions which you may have to make, by which the British foreign-enlistment act and the corresponding statute of the United States may be made more efficient for their purpose.3 This communication was courteously received by the Government of the United States, which professed themselves to be willing to consider any propositions which the British government might desire to make; but they offered no suggestion on their own part. On the contrary, Mr. Adams distinctly stated to Earl Russell, on the 14th February, 1863,

See the general list of claims filed in the Department of State of the United States Appendix to Case of the United States, vol. iv, p. 446, et seq. Appendix to Case of United States, vol. iii, p. 51.

Ibid., p. 92.

that they did not see how their own law on this subject could be improved;" (or, as Mr. Adams reported the same conversation to his own Government, that "the law of the United States was considered as of very sufficient vigor.") Earl Russell then rejoined, that the administration of which he was a member had, on more mature consideration, come to a similar conclusion; and "that no further proceedings need be taken at present on the subject."

On a later date (27th March, 1863) Lord Russell told Lord Lyons that the subject had again been mentioned:

With respect to the law itself, Mr. Adams said, either it was sufficient for the purpose of neutrality, and then let the British government enforce it, or it was insufficient, and then let the British government apply to Parliament to amend it. I said that the cabinet were of opinion that the law was sufficient; but that legal evidence could not always be procured.2

On another occasion Lord Russell gave Mr. Adams an answer substantially the same as Mr. J. Q. Adams, as Secretary of State, had returned to a similar suggestion made by the minister of Portugal: "The Alabama has avoided seizure through the inadequacy of the evidence, not through a defect in the law."

3

The correspondence between the two governments prior to the termination of the war does not justify the statement made at page 113 of the case of the United States, that "the United States repeatedly, and in vain, invited Her Majesty's government to amend the British foreignenlistment act." The only foundation for that statement appears to be that Mr. Adams, in a letter to Earl Russell of the 20th May, 1865, spoke of "the inefficiency of the law," on which the British government relied; and of "their absolute refusal, when solicited, to procure additional powers to attain the object." Nor was it until the 18th September, 1865, (when the war was over,) that Mr. Adams suggested to Earl Russell that there were certain of the "main provisions" of the law of the United States on this subject, viz, "those very same sections which were originally enacted in 1817, as a temporary law, on the complaint of the Portuguese minister, and made permanent in that of 1818," which were not found in the law of Great Britain; adding, "It is in these very sections that our experience has shown us to reside the best preventive force in the whole law." To this suggestion a very conclusive reply was made by Earl Russell on the 3d November, 1865, (the accuracy of which has since been admitted even by American writers most strenuous in their advocacy of the claims against Great Britain,) viz, that the sections of the American acts of 1817 and 1818 referred to by Mr. Adams, which are commonly known as the "bonding clauses," "proved utterly inefficacious to prevent the fitting out of privateers at Baltimore," and were also so strictly limited to "armed" vessels, or vessels carrying a cargo "consisting principally of arms and munitions of war," as to be wholly inapplicable (even if they had been in force in Great Britain) to the Alabama, Florida, Georgia, Shenandoah, and vessels of that class. 5

Under these circumstances no alteration was attempted to be made in the law of Great Britain on this subject during the war, when it might have been attended with serious difficulties, and might [129] have been objected to as inconsistent with neutrality. Her Majesty's government believed that the existing law would be

Ibid., vol. i, p. 668.

2 Ibid., p. 670.

3 Ibid., vol. iii, p. 533.

Ibid., p. 572.

Ibid., p. 587.

*

found sufficient in all cases in which evidence of its infringement might be forthcoming, to stop those enterprises, of which the United States had a right to complain; and the result was not such as to disappoint its expectations.

After the close of the war, Lord Clarendon, in a dispatch to Sir F. Bruce, December 26, 1865, made a new overture to Mr. Adams for the adoption, concurrently by both nations, of measures calculated to bring about such improvements in the code of international law, as experience might have shown to be necessary. "Mr. Adams," he reports, "in reply said, that the law of England, in its international application, stood greatly in need of amendment, but he gave me no encouragement to expect that his government would co-operate with that of Her Majesty in the course of proceeding which I had suggested."

Afterward, in 1867, a royal commission was appointed by the British government to consider whether it was expedient to make any and what amendments in the neutrality laws of Great Britain; and the result of their labors was an act of Parliament, passed in 1870, by which the British government has been armed with much more stringent powers of control than it before possessed, over all trading or other operations of its citizens engaged in ship-building, which might have a tendency to compromise its neutrality or to disturb its friendly relations with bel ligerent powers. No similar powers are vested in the Government of the United States by the act of Congress of 1818. Yet, as to this British statute, the United States have suggested (at page 118 of their case) that its provisions "were intended, at least as against the British government, as a re-enactment of the law of nations, as understood by the United States to be applicable to the cases of the Alabama and other ships of war constructed in England for the use of the insurgents."

It might have been expected, if this were the view taken by the United States of the recent British legislation of 1870, that something would have been done, or at least attempted by the legislature of the United States, to bring their own neutrality laws to an equal degree of efficiency. So far from this, it will be found that their law of 1817-218 was designedly, and not through any mere inadvertence, restricted within its present limits; and that the only proposal for a change in that law which has yet been made to Congress, since the termination of the civil war, was in a precisely opposite direction.

A comparison of the provisions of the existing neutrality law of the United States with the British law which was in force during the whole of the late contest, (derived entirely from an American source, beyond suspicion of partiality,) will be found, with some other particulars, bearing on this immediate subject, in annex (B) to the present counter

case.

But it must be observed further, that a state is under no obligation to make changes in its laws at the instance of another state. All that it has to do is to take care that its international obligations are fulfilled. Were not the international obligations of Great Britain fulfilled from 1862 to 1865? The arbitrators have had ample proof that they were so. Ship after ship was seized and detained-at what cost in some cases, and under what circumstances of difficulty, they have already seen. No armed vessel at any time sailed from a British port for the service of the confederates. From July, 1862, to the end of the war, not a single vessel equipped or specially adapted by construction

Appendix to the Case of the United States, vol. iii, p. 627.

or otherwise for war was able to leave any British port for the confederate service; and not a single vessel, of which the government had any information, sailed, even without warlike equipment or adaptation, with the intention that she should be employed in that service. In the documents produced by the United States there are repeated statements to the effect that many formidable vessels had been contracted for by the agents of the Confederate States in England. What became of these contracts? They appear to have been abandoned, and the confederate government had recourse to France, whence, though foiled in some other instances, they obtained the iron-clad Stonewall.i

This charge therefore vanishes, and the decision of the British [130] government not to *propose any alteration of its laws to Parliament while a war was in progress, but to reserve the whole question for later and more deliberate consideration, can certainly afford no cause of complaint to the United States.

There is, however, another class of charges, quite distinct from those reviewed above, by accumulating which it is apparently sought, in the case of the United States, to make good the deficiencies of the latter. These relate to the hospitalities afforded in ports of the British Empire to confederate cruisers, and to the undue favor or partiality which is alleged to have been shown to them by the local authorities. The arbitrators know what is the general character of these complaints. That a vessel of war may have contrived to ship a few more tons of coal, or a few more casks of beef or biscuit, or to stay in port a day or two longer, than strict necessity required; that precautions which ought to be needless in dealing with naval officers (who are men of honor) may sometimes have been omitted or not suspiciously enforced, that any civility, of the most trivial and ordinary kind, was extended to the commander of a confederate vessel-these are the grievances on which the United States ask a tribunal of arbitration to pass judgment, and on which they rely as assisting their claim for compensation against Great Britain.

It is evident that, if all these complaints could be proved, they would not support a demand for compensation; nor are they really within the scope of the reference to arbitration.

The restrictions which were imposed by the Queen's regulations on belligerent vessels, entering ports within her dominions, were not required by international law. They were made, and they might have been revoked, in the exercise of those discretionary powers which are rested in all sovereign governments. All that Great Britain owed the United States on this score was, that they should be enforced, fairly and impartially, on both belligerents alike. In the section of this counter-case which has been devoted to that subject all these complaints have been reviewed and answered, in a mauner which Her Majesty's government would fain hope will prove convincing, not only to

The arbitrators are referred to Sinclair's letter, (24th September, 1863,) quoted in the Case of Great Britain, p. 45:

"When I made a contract with you in November last for the building of a steamship, I was under the impression, having taken legal advice, that there was nothing in the law of England that would prevent a British subject from building such a vessel for any foreign subject as a commercial transaction. Although the recent decision in the court of exchequer in the case of the Alexandra would seem to sustain the opinion, yet the evident determination of your government to yield to the pressure of the United States minister, and prevent the sailing of any vessel that may be suspected of being the property of a citizen of the Confederate States, is made so manifest that I have concluded it will be better for me to endeavor to close the contract referred to, and go where I can have more liberal action."

the arbitrators, but to the United States. It would, indeed, be no matter of surprise, and would afford no great occasion for censure, if it should be found that, among the widely scattered colonial possessions of the British Empire, some errors of judgment had been committed, and that difficulties new to the local authorities, and often very embarrassing, had not always been satisfactorily met. But it must surely be plain to every one who reads this recital that the governors of the various British colonies executed the regulations to the best of their judgment and ability, and with thorough impartiality as between the two belligerents. It is difficult, indeed, to avoid the conclusion that these complaints spring from imperfect information. When, for example, it is asserted that the cruisers of the United States were virtu ally excluded from the chief port of the Bahama Islands, in favor of confederate cruisers, and we discover that these islands were thirtyfour times visited by the former, while Nassau was but twice visited by the latter; or, when the quantity of coal obtained by confederate ships is made a matter of complaint, and we find that a single United States vessel, within six weeks, contrived to procure from three British ports more than two-thirds of the amount ascertained to have been purchased within Her Majesty's dominions by all the confederate ships together during the whole course of the war, can we doubt that the Government of the United States is laboring under serious misapprehensions?

The British colonies were, it is true, often resorted to by belligerent vessels of war; but their most frequent visitors were cruisers of the United States; and, if infractions of Her Majesty's regulations were sometimes committed, these cruisers were the most frequent offenders.

COMPENSATION CLAIMED BY THE UNITED STATES.-GENERAL PRIN CIPLES.

The British government then, on this summary review of the facts and arguments adduced by the United States, submits to the arbitrators that no failure of duty has been established against Great Britain in respect of any of the vessels enumerated in the case. But, since the arbitrators are to judge, and, as it is necessary for every party to an arbitration to contemplate the possibility that on some points the award may not be in his favor, something ought here to be said on the claims for compensation urged by the United States, and on the proper mode of dealing with such claims.

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 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 [131] *members of each particular commonwealth. But the general

United States.

principle carries us but a little way. Before it can be applied in practice various considerations interpose themselves, which are as neCompensation Cessary to guard against injustice in one direction, as the claimed by the principle itself is to prevent or remedy it in another. It General principle. is not necessary to enumerate all these considerations. Here it is enough to say that the reparation claimed should never exceed the amount of the loss which can be clearly shown to have been actually caused by the alleged injury; and that it should bear some

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