CORNELL UNIVERSITY LIBRARY ^"^T^lf rl Tr.. a. f- liliuvi^ X^^ Titt ^ ^^ " 1 PRINTED IN U. 9. A. car NO. 33233 Cornell University Library JX 233.A32 "Papers relating to ^^e t;ef *y of W^^^^^^^ 3 1924 007 450 400 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007450400 r^^PERS RELATING TO THE TREATY OF WASHINGTON. VOLUME 11 -GEiNEVA ARBITRATION. CONTAINING THE REMAINDER OF THE PAPERS ACCOMPANYING THE COUNTER CASE OF THE UNITED STATES; COUNTER CASE OF HER BRITANNIC MAJESTY'S GOVERNMENT; INSTRUCTIONS TO THE AGENT AND COUN- SEL OF THE UNITED STATES, AND PROCEEDINGS AT GENEVA IN DECEMBER, 1871, AND APRIL, 1872; CORRESPONDENCE RESPJICTING THE GENEVA ARBITRATION, AND THE PROPOSED SUP- PLEMENTAL ARTICLE TO THE TREATY.; AND DECLARATION OF SIR STAF- FORD NORTHCOTE AT EXETER. WASHINGTON: GOVERNMENT FEINTING OFFICE. 1872. iUNiVERSITY LIBRARY TABLE OF CONTENTS. Page. Remainder' of papers aocouipauyiug the Couuter Case of the United States 1 Counter Case of her Britannic Majesty's Government 197 I. Introductory statement ' 203 II. Argument of the United States on neutral duties 207 III. Precedents appealed to by the United States 232 IV. Various complaints of the United States against Great Britain. Traffic in munitions of war 264 V. The Sumter and Nashville 290 VI. The Florida and Alabama '. 297 VII. The Georgia and Shenandoah 321 VIII. The Clarence, Tacouy, Archer, Tuscaloosa, Tallahassee, Chickamaiiga, and Retribution 339 IX. Reception of the confederate cruisers ia British ports 346 X. Conclusions 369 INSTRUCTIONS TO THE AGENT AND COUNSEI,, AND PROCEEDINGS AT GENEVA IN DECEMBER, 1871, AND APRIL, 1872. 1. Mr. Davis to Mr. Fish Submits a printed copy of the Case and its Nov. 13, 1871. accompaniments. Circumstances attend- ing its preparation 413 2. Mr. Fish to Mr. Davis Actnowledges receipt of the Case. Presi- Nov. 14, 1871. dent's approval thereof. May present it and its accompaniments at Geneva, in the manner required by the Treaty, as the Case of the United States, and the documents, &c., on which they rely 413 3. Same to same Instructing Mr. Davis on the subject of his Nov. 14, 1871. duties as Agent of the United States be- fore the Tribunal of Arbitration at Ge- neva .-. 414 4. Mr. Fish to the Counsel General instructions for their guidance as Dec. 8, 1871. counsel for the United States before the Tribunal of Arbitration 416 5. Mr. Davis to Mr. Fish Arrival at Geneva. Meeting of the Arbitra- Dec. 15, 1871. tors. Count Sclopis chosen to preside over the Tribunal. Mr. Stampfli, on re- quest of the Tribunal, names Mr. Favrot as secretary. Cases presented. Trans- mits copies of notes which accompanied the same 416 6. Same to same Meeting of the Arbitrators. Exchange of April 15, 1872. Counter Cases. British Counter Case, accompanied by a note from Lord Tenter- den to the Arbitrators. Reply of Mr. Davis thereto. Telegram from Mr. Fish received relative to claims filed in the Department of State since March 22d. The Arbitrators and British Agent in- formed thereof 418 CORRESPONDENCE RESPECTING THE GENEVA ARBITRATION AND THE PROPOSED SUPPLE- MENTAL ARTICLE TO THE TREATY. 1. Gen. Scbenck to Mr. Fish London journals demand withdrawal of (Telegram.) Feb. 2, 1872. claims for indirect damages. Ministry alarmed 425 IV CONTENTS. Page. 2. Mr. Fish to Gen. Scheuck There must be no withdrawal of any part (Telegram.) Feb. 3, 1872. of claim. Eepudiation of Treaty not anticipated 425 3. Gen. Sohenck to Mr. Fish Communicates Earl Granville's note of 3d, (Telegram.) Feb. 5, 1872. giving British interpretation of Treaty, " Her Majesty's Government hold that it is not within the province of the Tri- bunal of Arbitration to decide upon claims for indirect losses and injuries.". 425 4. Gen. Schenck to Earl Granville... Reply to Earl Granville's note of 3d. United Feb. 5, 1872. States will be gratified with assurance that Great Britain does not desire to in- terpose obstacles to prosecution of Arbi- tration. Object of the United States is identical with that of Great Britain to establish amicable relations between the two countries, and to set an example how two great nations can settle disputes by reference to Arbitration. Will inform his Government as to British opinion regard- ing indirect claims "- 426 5. Gen. Schenck to Mr. Fish Comments on the argument as used in Par- Feb. 10, 1872. liament to sustain the position taken by Her Majesty's Government in relation to their interpretation of the Treaty 42T 6. Gen. Schenck to Mr. Fish Interview with Earl Granville, who states (Telegram.) Feb. 27, 1872. . that Sir Edward Thornton had informed him that Cabinet at Washington had re- jected Mr. Fish's draught of reply to his note, and had taken further time for con- sideration. Earl Granville was prepared to recommend to Her Majesty's Cabinet that they should not press for withdrawal of American Case if the agent of the United States shall inform the Arbitra- tors, before their meeting in June, that the United States do not ask award on indirect claims 429 7. Mr. Fish to General Schenck Reported rejection untrue. Entire nnan- (Telegram.) Feb. 27, 1872. imity. Granville's suggestion inadmissi- ble 429 8. Mr. Fish to Gen. Schenck Referring to Earl Granville's note of 3d Feb. 27, 1872. General Schenck, the President sincerely desires to promote an abiding friendship between the two nations to which the note so happily refers. Reviews the ob- ject of appointment of the Joint High Commission "to provide for an amicable settlement of all causes of difference be- tween the two countries." The United States desire to maintain the jurisdiction of the Tribun al over all unsettled claims — that the questions of law involved therein being adjudicated, all questions arising out of the " Alabama Claims " may be forever removed 429 9. Mr. Fish to Gen. Schenck Commends his reply to Earl Granville's (Telegram.) Feb. 27, 1872. note of 3d. Acceptance of friendly assur- ances of British note, but thinks position taken therein unsustained by the history of the negotiations between the two Gov- ernments 43;J 10. Gen. Schenck to Mr. Fish Earl Granville desires certain chann-es made (Telegram.) Feb. 28, 1872. in language of his proposal . . . .° 434 CONTENTS. V Page. 11. Mr. Fish to Gea. Scheuok Cannot agree to l^avl Granville's proposal. (Telegram,) Feb. 29, 1872. Dasire of this Government to meet that of Great Britain in any honorable adjust- ment of the incidental question -which has arisen 434 la. Gen. Scheack to Mr. Fish Stating that he had left a copy of Mr. Fish's Mar. 16, 1872. instruction of 27tli ultimo with Earl Granville with regard to the province of the Tribunal of Arbitration to decide upon certain claims presented by the Agent of the United States 434 13. Gen. Schenck to Mr. Fish Transmits reply of Earl Granville of March Mar. 21, 1872. 20th to Sir. Fish's instructions of 27th ultimo, to him, (Genei-al Schenck,) and printed memorandum in three parts. His note treats upon incidental or consequen- tial damages. Reviews the Johnson- Clarendon Treaty. Part 1 of the memo- randum treats " on the waiver of claims for indirect losses contained in the 36th Protocol." Part 2, " on the construction of the Treaty of Washington." Part 3, "on the amount of the claims for indi- rect losses." General Schenck, in reply, states that he will forward the above to his Government without delay 435 14. Gen. Schenck to Mr. Fish Asks whether there is any objection to (Telegram.) April 1, 1872. British Government tiling Counter Case without prejudice to their position in regard to consequential damages 460 15. Mr. Fish to Gen. Schenck United States understand that British Gov- (Telegram.) April 2, 1872. ernment is bound to file Counter Case. The rights of both parties will be the same after filing Counter Case as before. 460 16. Mr. Fish to Gen. Schenck Reply to Earl Granville's note of March April 16, 1872. 20th to General Schenck. Review of cor- respondence during and since the then pending negotiations between Mr. John- son and Lord Clarendon for a convention for the settlement of the "Alabama Claims " question 4R0 17. Gen. Schenck to Mr. Fish Interview with Earl Granville, who stated April 18, 1872. that British Government believe that a general desire prevails among the peo- ple of the United States for the with- drawal of claims for indirect losses. Gen- eral Schenck replied that the Govern- ment and citizens of the United States were particularly desirous that the ques- tion and extent of the liability of a neu- tral should be arrived at, so that the rule and law for all might be known in the future 474 18. Mr. Fish to Gen. Schenck The indirect claims were not eliminated April 23, 1872. from the general complaint of the United States. Neither the Government nor the American people have ever attached much importance to the so-called indi- rect claims. The United States do not desire a pecuniary award on their ac- count. The President is desirous of pre- venting a failure of the Arbitration or repudiation of the Treaty 475 VI CONTENTS. Page. 19. Gen. Sobenck to Mr. Fish It appears probable now that the British April 25, ] 872. Goverament will take .such course as will put an end to the Arbitration and to the Treaty. Common conviction in Great Britain that the best and most in- fluential men of the United States desire to have our Government recede from its position 476 20. Mr. Fish to Gen. Schenck Neither ia the Case nor in any instructions (Telegram.) , April 27, 1872. 21. Earl Granville to Sir E. Thornton- April 29, 1872. 22. Gen. Schenck to Mr. Pish (Telegram.) April 30, 1872. 23. Sir E. Thornton to Earl Granville. April 30, 1872. 24. Gen. Schenck to Mr. Fish (Telegram.) May 2, 1872. 23. Earl Granville to Sir E. Thornton. May 2, 1872. 26. Mr. Fish to Gen. Schenck (Telegram.) May 4, 1872. have the United States asked for pecu- niary damages on account of indirect losses. It is thought essential that the question be decided whether claims of similar character can in the future be advanced against the United States as a neutral by Great Britain when the latter is a belligerent 477 Conversation with General Schenck as to Mr. Fish's suggestion. Views of Cabinet and letter to General Schenck communi- cating proposed draft of note 478 Earl Granville states that British Govern- ment objects to having Arbitrators ex- press opinion on indirect claims when the two Governments agree that tbey are not the subject of award. Sends draught of a possible note from Earl Granville, in which it is stated that Her Majesty's Government adhere to their view that it is not within the province of the Arbitrators to consider or decide upon claims for indirect losses 481 Conversation with Mr. Fish as to state- ment of Lord Granville respecting with- drawal from arbitration. Suggestion made by Mr. Fish that agreement for the future should be offered by England iu return for engagement that United States would not ask for money award for indirect claims 481 Sends introductory part of note trans- mitted by telegraph April 30. Her Majesty's Government do not wish to commence a diplomatic controversy on the subject of indirect losses, but merely to comply with the desire of the Gov- ernment of the United States to be ad- vised of the reasons which had prompted the declaration made by Her Majesty's Government on the 3d of February. . . . 483 Copy of letter to General Schenck, inclos- ing proposed preface to draught of note. 484 The President cannot justify his assent to the terms of the proposition of the Brit- ish Government, as communicated in tel- egram of 30th April. He cannot assent to any proposition which, by implication or inference, withdraws any part of the claims or of the Case of this Government from consideration of the Tribunal. The President adheres to the opinion that it is within the province of the Arbitrators to consider and determine the liability of Great Britain for all the claims put for- ward by the United States 484 CONTENTS. VII Pago. 27. Gen. Sohenck to Mr. Fish Will urge Earl Granville to modify his pro- (Telegram.) May 5, 1&72. posal. Asks for suggestions as to what modifications 'would make it possible for the President to assent to it. Apprehends that, rather than submit indirect claims to judgment of Tribunal, the British Government would cease negotiations and make an absolute declaration against proceeding with the Arbitration. Asks if the following were substituted for that sent on April 30, would United States give its assent : Her Majesty's Govern- ment now ready to state that if the United States do agree not to press for pecuniary award before the Tribunal, Her Majesty's Government will not, in the event of becoming a belligerent while the United States is a neutral, advance any claims against the United States on account of any indirect, remote or conse- quential results of a failure to observe their neutrality 485 28. Gen. Sohenck to Mr. Fish Transmits amended proposal. Same sub- (Telegram.) May 6, 1872. ject as contained in No. 27 486 29. Mr. Fish to Gen. Schenck An agreement binding future action of this (Telegram.) May 6, 1872. Government can be made only by treaty, and would require the assent of the Sen- ate. If Tribunal decides against pecu- niary damages for consequential results of failure of any nation to observe its neutral obligations, such decision would be regarded as settling the question between the two Governments in the . future 486 30. Sir E.Thornton to Earl Granville.. Statement of Mr. Fish that United States May 6, 1872. cannot withdraw any part of their Case . . 487 31. Earl Granville to Sir E. Thornton - . Conversation with General Schenck. Ob- May 6, 1872. jections of American Government to pro- posed draught note. Amended draught note suggested by General Schenck 488 32. Earl Granville to Sir E. Thornton . . Copy of revised draught-note communicated May 6, 1872. by Lord Granville to General Schenck.. 490 33. Mr. Fish to Gen. Schenck This Government is of opinion that the May 7, 1872. submission of what are called the in- direct claims is within the intent of the Treaty, and their consideration within .the province of the Tribunal. The Presi- dent is anxious to reach a settlement of the important questions before the Tri- bunal ; is willing to consider and will present, if possible, for consideration of the Senate, any new article which may be proposed by the British Government. 491 34. Gen. Schenck to Mr. Fish Apprehends that British Government will (Telegram.) May 7, 1872. declare against submission to arbitra- tion of question of indirect dam ages 491 35. Earl Granville to Sir E. Thornton . . Communication by General Schenck of May 7j 1872. telegram from Mr. Fish and of his in- tended answer 492 36. Mr. Fish to Gen. Schenck This Government cannot withdraw from (Telegram.) May 8, 1872. the province of the Tribunal what it be- lieves to be entirely within their com- petence. If the British Government per- sist in their demand for the withdrawal by the United States of indirect claims, the responsibility of a failure of the Treaty must rest with them 493 VIII CONTENTS. Page. 37. Earl Granville to Sir E. Thornton . Conversation with General Schenck. May 8, 1872. United States Government suggest that that of Her Majesty should propose a supplementary article embodying ar- rangement which should be submitted to the Senate 494 .38. Same to same Has informed General Schenck that Her May 8, 1872. Majesty's Government object to pro- posing au article, and prefer the inter- change of notes 496 39- Gen. Schenck to Mr. Fish British Government, instead of proposing (Telegram.) May 9, 1872. new article to Treaty, prefer interchange of notes, and are willing to further modify tiieir note 496 40. Same to same' Have stated to Earl Granville decidedly, as May 9, 1872. to any interchange of notes, that the President, without the assent of the Senate, will not go beyond the sugges- tion made in your telegram of April 27. Earl Granville declines to have con- ducted at Washington the negotiation for a new article to the Treaty 496 41. Same to same Earl Granville proposes to modify his May 9, 1872. amended note, as telegraphed on the 6th instant 497 42. Earl Granville to Sir E. Thornton. Further conversation with General May 9, 1872. Schenck respecting proposed article . . . 497 43. Gen. Schenck to Mr. Fish Earl Granville informs General Schenck (Telegram.) May 10, 1872. that a Cabinet meeting will be held this morning, and wishes to meet him after- ward 499 44. Same to same Transmits a draught of au article sub- May 10, 1872. mitted by the British Government, to the effect that the President will make no claim on the part of the United States in respect of indirect losses to the Tri- • bunal 500 45. Earl Granville to Sir E.Thornton. Statement communicated by General May 10, 1872. Schenck as to the position of the ques- tion of indirect claims 500 46. Gen. Schenck to Mr. Fish Incloses copies of two notes and their May 11, 1872. accompaniments from Earl Granville. The first, dated the 10th instant, re- capitulates, in a general way, what had recently passed between him and General Schenck ; and the memorandum which accompanied it relates to a proposed ex- change of notes upon the subject of a supplemental article. The second is a brief note dated also the lOfcii, and was accompanied by the draught of the arti- < cle referred to in his first 501 47. Earl Granville to Sh- E. Thornton. Eeply to Mr. Fish's dispatch of 16th May 13, 1872. April to Gen'eral Schenck, with a review of the arguments and correspondence of the United States in support of its claims against Great Britain for indirect or national losses and injuries extending beyond the direct claims of American citizens for specific losses arising from captures by the " Alabama," " Florida," "Shenandoah," and "Georgia." Why the British High Commissioners did not CONTENTS. IX 47. Earl Gran%'ille to Sir E. Thoratoa — Continued. May 13, 1872. 48. Sir E. Thornton to Earl Granville. May 13, 1872. 49. Gen. Schenck to Mr. Fish May 14, 1872. 50. Sir E. Thornton to Earl Granville. May 14, 1872. 51. Earl Granville to Sir E. Thornton. May 14, 1872. 52. Same to same May 16, 1872. 53. Sir E. Thornton to Earl Granville. May 17, 1872. 54. Earl Granville to Sir E. Thornton May 17, 1872. 55. Earl Granville to Gen. Schenck.. . May 17, 1872. 56. Gen. Schenck to Earl Granville . ■ May 18, 1872. 57. Sir E. Thornton to Earl Granville-. May 20, 1872. 58. Gen. Schenck to Mr. Fish May 25, 1872. 69. Mr. Fish to Gen. Schenck May 25, 1872. 60. Earl Granville to Sir E. Thornton. . May 25, 1872. 61. Mr. Pish to Gen. Schenck (Telegram.) May 26, 11172. 62. Sir E. Thornton to Enrl Granville. Muy 27, 1872. Page, remonstrate against the presentation of these claims. The nature of the claims referred to in the Treaty not left to in- ference, hut -were closely defined and limited. Argues that the Arbitrators cannot he governed in any particular by that portion of the Treaty defining the powers of the Claims Commission 504 Conversation with Mr. Fish. His state- ment that Her Majesty's Government wish to compel that of the United States to retract. Favorable impression produced by draught article 514 Transmits a copy of a paper which he read to Earl Granville on the 10th, being a summary of views of the United States on the indirect claims. Earl Granville replied that Her Majesty's Government would probably conclude to take the initiative and propose a Treaty article.. 515 Intention of Mr. Fish to present papers to Congress 519 Understanding with General Schenck as to draughting identic note , 520 Correspondence will be published in the "Gazette" 520 Documents surreptitiously published by the " New York Herald'" 521 Approves language as reported in No. 23, p. 481 522 If Senate agree to article, will instruct Sir E. Thornton to sign. As to notes to Tri- bunal 522 As to signing treaty and notes 522 Conversation with Mr. Fish as to amend- ments made by Committee on Foreign Relations in draught article 523 Incloses copies of correspondence between himself and Earl Granville in regard to proposed identic notes to be communi- cated to Arbitrators at Geneva, in case of new Treaty article being adopted 524 Senate will amend proposed article. Note to Arbitrators cannot be fixed until lan- guage of article is agreed upon 525 Sends draught of preamble to the Treaty 525 The Senate has amended the proposed arti- cle submitted by the British Government, and advise and consent to its adoption as amended. General Schenck is in- structed to inform Earl Granville that, in pursuance of this action of the Sen- ate, the President will negotiate a new article. The article, as proposed by Great Britain and as amended by the Senate, is appended 525 . Note'from Mr. Fish, counininicating reso- lution of Senate as to article 5d7 CONTENTS. Page, 63. Mr. PishtoGen.Sohmck Acknowledges his dispatch of 14th, and jMav 28 1872. commends his review of the questiMi oi indirect claims as read hy him to iarl Granville a few days previous. Reasons why the United States insist on retaining the indirect claims before the tribunal -.J 528 64. Gen. Schenck to Mr. Fish ^tatesthat Her Majesty's Governnaentcon- (Tele^ram.) May 28, 1872. sider the Senate's definition of principle '' ° ' ^ which both Governments are prepared to adopt for the future too vague, and prefer the article as they had draughted it; but are willing to accept the article as the Senate proposes, with the substi- tution of certain words 528 65. Mr. Fish to Gen. Schenck United States declines to agree to the pro- (Telegram.) May 28, 1872. posed altering of the supplementary article ^*'' 66. Gen. Schenck to Mr. Fish Transmits text of note from Earl Granville (Teleu-ram.) May 28, 1872. to the effect that Her Majesty s Govern- ^ " ment are not able to find in the article as amended by the Senate any means or standard of interpretation, and are unable to signify an assent to a form of article of which they cannot discover the scope 529 67. Mr. Fish to Gen. Schenck Informing him that he told Mr. Thornton May 28, 1872. that no alteration of any kind of the article as amended by the Senate could be entertained, and that it was useless to discuss the proposed note to the Arbi- trators while liis Government is contem- plating any change in the article. With regard to the possible failure of the Treaty Mr. Fish remarks that this coun- try will stand before the world having done all that it could to maintain it and the civilizing principle which it es- taWished 530 68. Sir E. Thornton to Earl Granville.. Mr. Pish will not agree to proposed altera- May2i, 1872. tions in article. Any further reference to the Senate would 136 of no avail 531 69. Earl Granville to Sir E. Thornton . Explanations asked from General Schenck May 23,,1872. as to principle of draught article recom- mended by the Senate 532 70. Mr. Fish to Gen. Schenck The President is extremely anxious to (Telegram.) May 29, 1872. preserve the Treaty, and unless the new article be signed and approved by the Senate so that the President's ratification may go by the steamer of Saturday, (Ist proximo,) it cannot reach London in time to be exchanged and presented to the Arbitrators on 15th June 533 71. Earl Granville to Sir E.Thornton.. Communicationof telegram from Mr. Fish, May 29, 1872. declining to agree to alterations in amended article ' 534 72. Gen. Schenck Memorandum as to the two Governments May 30 ,1872. respecting the principle of the article. .. 534 73. Gen. Schenck to Mr. Fish Earl Grauvillo remarks that certain por- (Telegrarn.) May 30, 1872. tions of Mr. Fish's statement, as con- tained in his telegram of the day previous, to General Schenck, were inexplicable to him. General Schenck stated that the CONTENTS. XI Pago. 73. Gen. Sohenck to Mr. Fish — ^Cont'd. . article as proposed by Great Britain oon- (Telegram.) May 30, 1872. tines itself to liypothetioal oases which ^ ' may never occur, while the amendments of the Senate apply the principle to generalcases • 535 74. Gen. Schenck to Mr. Fish.. Incloses copies of recent correspondence May 30, 1872. with Earl GranviUe already telegraphed. 535 75. Gen. Scheiiok to Mr. Fish Transmits the text of a note from Earl (Telegram.) May 31, 1872. Granville, of the 30th, to the effect that Her Majesty's Government have stated their objections to the words proposed hy the Senate, but do not pretend that the words suggested by themselves were incapable of improvement. Earl Granville submits to General Schenck a draught article, the substance of which is that the President will not make any claim on the part of the United States • before the Tribunal of Arbitration in respect of the several classes of indirect I therein enumerated 540 76. Mr. Fish to Gen. Schenck Informing him that the time is too limited (Telegram.) May 31, 1872. for the Senate to consider the important changes proposed by the British Govern- meut to the terms of the supplemental article. Mr. Fish has suggested to Mr. Thornton that they sign the article as recommended by the Senate, that the Arbitration may proceed 541 77. EarlGranville to Sir E.Thornton. Sending draught of a convention for ad- May 31, 1872. journing presentation of argument to the Tribunal 543 78. Sir E. Thornton to Earl Granville. Statement of Mr. Fish as to diificulty of May 31, 1872. obtaining sanction of Senate to conven- tion for adjournment of Arbitration 543 79. Gen. Schenck to Mr. Fish Transmits copy of Earl Granville's note of June 1, 1872. 30th ultimo, already telegraphed. [See No. 75] 544 80. Mr. Fish to Gen. Schenck The adjournment of the Tribunal without (Telegram.) June 1, 1872. amending the fifth article of the Treaty wo'uld practically amount to a discon- tinuance, ,and that article can only be amended by a new Treaty. 545 81. Gen. Schenck to Mr. Fish Transmits text of note from Earl Granville (Telegram.) June 1, 1872. in reply to telegram from Mr. Fish to General Schenck of 31st of May, to the effect that Her Majesty's Government hold that by the article adopted by the Senate cases of bad faith and willful misconduct are brought within the scope of the proposed agreement, which deals with pecuniary compensation. Earl Granville is informed by Sir E. Thornton that Mr. Fish thinks the article adopted by the Senate capable of improvement. British Government declines to sign a Treaty not in conformity with their views. Are willing to sign a Treaty or concur in joint application to Tribunal to V adjourn proceedings of Arbitration 545 81. Mr. Fish to Gen. Sohenck , Relative to cases of bad faith or- willful (Telegram.) June 2, 1872. misconduct held by Great Britain to be \ within, the scoiie of the Senate article.. 546 X[I CONTENTS. Page. 83. Gen.^cUeuoktoMr.Fish. British Government l^^l'^^, J'^f'* ^fnl^^t (•Tplpp-ram 1 Jnne 2, 1872. Arbitrators have received the arguments (.ieiegram.; juuba, io<.e in. Ge- (Telegiam.) June 9, 1872. neva on 15th. If necessary, notify Arbi- ^ *= trators that you will be there to deliver argument and proceed according to Treaty. Should such notice as Granville's note indicates be given, a decided protest must be entered against any qualified or conditional appearance before the Tri- bunal 567 100. Mr. Davis to Lord Tenterden Incloses copy of letter addressed by him to June 10, 1872. each of the Arbitrators stating that United States will be represented on 15th instant, pursuant to adjournment and ^ prepared to present argument 101. Gen. Scheuck to Mr. Fish Transmits text of note from Earl Granville rTelegram.) June 11, 1872. to effect that Her Majesty's Governnieut will ask for an adjournment of the Tri- bunal for such .a period as will enable them to make a supplementary conven- tion with the United States 568 102. Gen. Sohenck to Mr. Fish Informing Mr. Fish that he has acknowl- (Telegram.) June 11, 1872. edged Earl Granville's note, the one above referred to 569 ■ 103. Gen. Scheuck to Mr. Fish Transmitsportionof anotefromEarl Gran- (Telegram.) June 12, 1872. ville of 11th instant. British Govern- ment believe that they have met all the objections which have been advanced by United States. If the United States be- lieve that certain cases are not covered by the last proposed form of article, and will state what the cases are, there is no doubt but that the two Governments can agree upon a form of words which will not be open to the same objection as that of the Senate amendment 569 104. Gen. Scheuck to Mr. Fish Transmits copy of correspondence with June 13,1872. Foreign Office, also reports of proceedings in both Houses of Parliament, and arti- cles from leading journals showing anxi- ety and excitement there occasioned by imminent prospect of the failure of the Arbitration at Geneva. Inclosure 6 re- ferred to in No. 72 is a recapitulation of the negotiations which have passed with respect to the supplementary Treaty ar- ticle 570 105. Mr. Fish to Gen. Scheuck Telegraph Mr. Davis that if arguments are (Telegram.) June 13, 1872. iiled in good faith without offensive no* tice, we will assent to their motion for adjournment 575 106. Earl Granville to Lord Tenterden . As to time necessary to consider a supple- June 12, 1872. mentary convention in case the Arbitra- tors inquire how long an adjournment is requested in note which is to be pre- sented 575 CONTENTS. XV Page. 107. Earl Granville to Lord Tenterden . Sir Eoundell Palmer having consented to Jnne 12, 1872. act as Her Majesty's Counsel, must be guided by bis advice in all proceedings. 576 108. Earl Granville to Lord Tenterden. If any circumstances should occur not pro- June 12, 1872. vided for while endeavoring to obtain an adjournment should asli instructions... 576 109. Lord Tenterden to Earl Granville. Reports arrival at Geneva; meeting of Tri- June 14, 1872. bunal fixed at 12 o'cloolj, 15th instant.. 575 110. Mr. Davis to Mr. Fish Our argument presented. British Agent in- (Telegram.) June 15, 1872. structed to withhold British argument. Tribunal adjourns till Monday 577 HI. Mr. Fish to Mr. Davis If there is to be an adjournment let it be (Telegram.) June 18, 1872. not beyond 1st of January. The President sees no objection to such adjournment if asked for by the defendants 577 112. Mr. Davis to Mr. Fish The Tribunal will, this morning, make dec- (Telegram.) June 19, 1872. laration to the effect that they do not propose to express or imply any opinion upon the points of difference between the two Governments, but it seems to them obvious that the proposed adjournment, instead of settling the questions in dis- pute, will have a tendency to make the ArbitratioTf abortive; they therefore make the declaration that after a careful perusal of all that has been urged by the United States in favor of indirect claims, they have arrived at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation, and should, upon such principle, be wholly excluded from the consideration of the Tribunal 577 113. Mr. Davis to Mr. Fish Counsel are of opinion that announcement June 19, 1872. this day made by the Tribunal must be received by the United States as deter- minative of its judgment upon the ques- tion of public law involved. They ad- vise that claims covered by this declara- tion be withdrawn from further consid- eration by the Tribunal 578 114. Mr. Fish to Gen. Schenck Telegraph Mr. Davis that the President ac- (Telegram.) June 22, 1872. oepts the declaration of the Tribunal as its judgment upon a question of public law which he felt that the interest of both Governments required should be decided. United States had no desire for a pecuniary award, hut' desired an ex- pression by the Tribunal as to the liabil- ity of a neutral for claims of that char- acter. The President consequently with- draws from the consideration of the Tri- bunal the three classes of indirect claims before referred to 578 115. Mr. Davis to Mr. Fish : Counsel concur in form of communication (Telegram.) June 25, 1872. to the Tribunal of the action of our Gov- ernment 579 116. Gen. Schenck to Mr. Fish Mr. Davis telegraphs General Schenck that >' (Telegram.) June 26, 1872. he informed the Arbitrators that their declaration with regard to the three classes of indirect claims is accepted by the President. Tribunal then adjourned till the 11th to enable the British Agent to coiiniinuicate with his Government.. 579 XVI CONTENTS. Page. 117. Geu. Sohenck to Mr. Fish Mr. Davis telegraphs General Schenck that (Telegram.) Juae 27, 1872. in view of the fact that the United States withdraws her claim for indirect losses, the British Agent will request leave to withdraw the application of his Government for an adjournment 580 118. Mr. Davis to Mr. Fish British argument filed. Arbitration goes (Telegram.) June 27, 1872. on 580 119. Earl Granville to Lord Tenterden. Her Majesty's approval of his proceedings July 1, 1872. at Geneva. Valuable assistance rendered by Sir E. Palmer. Conciliatory spirit shown by American colleagues 581 120. Gen. Scheuck to Mr. Fish Forwards copies of Queen's speech. Her Aug. 12, 1872. Majesty made to say that the declaration of the Arbitrators on subject of claims for indirect losses, is entirely consistent with views annouuced by her at opening of the session. Ground then taken was that United States had put forward cer- tain claims which Her Majesty's Govern- ment held not to be within scope of the Treaty 581 121. Mr. Fish to Gen. Scheuck Acknowledges above dispatch. Intheoor- Aug. 31, 1872. respondence which ensued the United > States contended in effect that all the claims presented were within the proper jurisdiction of the Tribunal, and that they could be disposed of only on judg- ment or award of the Arbitrators. The action of the Tribunal looks very much like taking cognizance of them 582 122. Sir E. Thornton to Mr. Fish Her Majesty's acknowledgments for care Oct. 17, 1872. and attention which Mr. Adams be- stowed on im portant matters with which he was called upon to deal, and high ap- preciation of his ability and indefetiga- ble industry 584 123. Mr. Fish to Sir E.Thornton Acknowledges above. President gratified Oct. 22, 1872. with the intelligence of Her Majesty's appreciation of the manner in which Mr. Adams has discharged the high duties intrusted to him 585 124. Gen. Schenck to Mr. Fish Parliamentary proceedings. Mr. Glad- Feb. 7, 1873. stone's statement that the expression of regret by Great Britain contained in the Treaty of Washington was not in the nature of a condition precedent 585 125. Mr. Fish to Gen. Scheuck Acknowledges above. Facts will scarce i!et). 2U, 187.3. sustain Mr. Gladstone's denial. History of the informal negotiations which pre- ceded the appointment of the Joint High Commission __ 5gg 126. Gen. Scheuck to Mr Fish -Refers to above and expresses satisfaction iVlarch fa, 18/3. that autheniio record of facts attendino- expression of regret by Great Britain contained in the Treaty has been made. His own nnderstanding as to the mat- ter 587 CONTENTS. , XVII STATEMENT OP SIR STAFFORD NOETHCOTE AT BXBTEK, IN RELATION TO AN ALLEGED PROMISE OP EXCLUSION OF THE INDIRECT CLAIMS. . Page. No. 1. A passage from a speech of Sir Stafford Northcote, at Exeter, May 17, 1873, as published in the Pall Mall Gazette of May 18 593 2. Extract from the London Times of May 20, 1872, giving a report of the ' speech of Sir Stafford Northcote, at Exeter 593 3. Extract from an instruction of Mr. Fish to General Schenck, June 3, 1872.. 596 4. Cbpy of a letter of Mr. Fish addressed to each of the American commis- sioners.. 597 5. Letter of Judge Hoar, in answer to Mr. Fish's letter of June 3 598 6. Letter of Judge Nelson, in answer to Mr. Fish's letter of June 3 598 7. Letter of General Schenck, in answer to Mr. Fish's letter of June 3 599 8. Letter of Judge Williams, in answer to Mr. Fish's letter of June 3 600 • 9. Extract from the 36th Protocol of the Conferences of the Joint High Com- mission 601 10. Extract from a speech of the Marquis of Eipon, in the House of Lords, June 4, 1872, taken from the London Times of June 5, 1872 .' 603 11. Letter of Sir Stafford Northcote to Earl Derby, June 5, 1872, read in tke House of Lords, June 6, taken from the report of the proceedings in the House of Lords, in the London Times of June 7 603 II A— n CONTINUATION OF THE PAPERS ACCOMPANYING THE COUNTER CASE OF THE UNITED STATES. SUPPLEMENTAL MEMOKANDA AND DIPLOMATIC CORRESPONDENCE TOUCHING NEUTRALITY LAWS AND THE EXECUTION THEREOF IN COUTSTRIES OTHER THAN THE UNITED STATES AND GREAT BRITAIN. [199] *1.— FEANOE. N^o. 1. Extracts from the Code Penal of Prance, with commentaries. No. 2. The Arman contracts. No. 3. Case of the Eappahannock. No. 1.— THE CODE PfiNAL AND COMMENTARIES. A. — C. P. Art. 84. Quiconque aura, par des actions hostiles non-ap- prouvees par le gouvernement, expos6 I'etat h une d6claration de guerre, sera puni da baunissement ; et, si la guerre s'en est suivie, de la depor- tation. ERRATUM. At page 587, line 7, instead of " to, and," read ■" tion. Art. 85. Whoever shall have exposed the French to reprisals by acts not approved by the government shall be punished by banishment. [200] *B. DA]uL,oz, jurisprudence genirale, tome XIV, p. 531. Sect. 5. Actes qui peuvent exposer Vetat a une declaration de guerre et les citoyens « des represailles. 67. Ici il ne s'agit plus de trahison; il s'agit de simples faits qui r^velent moins la perversity ou I'immoralit^ de lejir auteur que son im- prudence, sa tem^rite ou sa 16gferet6. Ce sont des actes qui, dans les circonstances ou ils sont intervenus, peuvent exposer I'^tat ^ une de- claration de guerre, ou les citoyens k des represailles. lis font I'objet de deux articles : "Quiconque," dit I'art. 84, c. p6n., "aura, par des ac- tions hostiles non-approuvees par le gouvernement, expose I'etat £l une declaration de guerre, sera puni du bannissement ; et, si la guerre s'en est suivie, de la deportation." Ne comprenant pas comment le fait d'un simple particulier pourrait avoir assez de gravity pour exposer I'etat a une declaration de guerre, Carnot a pense que cet article ne ■pourrait s'appliquer qu'^ des agents du gouvernement. " II n'y a," dit- il, " que les agents du gouvernement dont les actions hostiles puissent produire I'effet d'allumer la guerre entre la France et les nations 6trau- 1 A — IT CONTINUATION OF THE PAPERS ACCOMPANYING THE COUNTER CASE OF THE UNITED STATES. SUPPLEMENTAL MEMORANDA AND DIPLOMATIC COEKESPONDENOE TOUCHING NEUTRALITY LAWS AND THE EXECUTION THEREOF IN COUNTRIES OTHER THAN THE UNITED STATES AND GREAT BRITAIN. [199] *1.— EEANCE. Ko. 1. Extracts from the Code Penal of Prance, with commentaries. No. 2. The Arman contracts. No. 3. Case of the Eappahannocli. No. 1.— THE CODE PENAL AND COMMENTARIES. A. — C. P. Art. 84. Quiconque aura, par des actions hostiles non-ap- prouvees par le gouvernement, expos6 l'6tat 4 une d6claration de guerre, sera puni da baunissement ; et, si la guerre s'en est suivie, de la depor- tation. Art. 85. Quiconque aura, par des actes non-approuves par le gouverne- ment, expos6 des Erangais k 6prouver des repr^sailles, sera puni du bannissement. A.i — [Translation.] — Art. 84. Whoever shall have exposed the state to a declaration of war by hostile acts not approved by the government shall be punished by banishment, and, if war should follow, by deporta- tion. Art. 85. Whoever shall have exposed the Erench to reprisals by acts not approved by the government shall be punished by banishment. [200] *B. DaIjIjOt,, jurisprudence generale, tome XIV, p. 531. Sect. 5. Aetes qui peuvent exposer Vetat a une declaration de guerre et les citoyens « des repr6sailles. 67. Ici 11 ne s'agit plus de trahison; il s'agit de simples faits qui r^velent moins la perversity ou l'immoralit6 de lejir auteur que son im- prudence, sa tem6rit6 ou sa Mgferet6. Ce sont des actes qui, dans les circonstances ou ils sont intervenus, peuvent exposer I'^tat d. une de- claration de guerre, ou les citoyens h des repr6sailles. lis font I'objet de deux articles : " Quiconque," dit I'art. 84, c. p6n., "aura, par des ac- tions hostiles non-approuv6es par le gouvernement, expose l'6tat ^ une declaration de guerre, sera puni du bannissement ; et, si la guerre s'en est suivie, de la deportation." Ne comprenant pas comment le fait d'un simple particulier pourrait avoir assez de gravity pour exposer I'etat a une declaration de guerre, Carnot a pense que cet article ne pourrait s'appliquer qu'^ des agents du gouvernement. " II n'y a," dit- il, " que les agents du gouvernement dont les actions hostiles puissent produire I'effet d'allumer la guerre entre la Erance et les nations 6tran- 1 A — II 2 TREATY OF WASHINGTON — ^PAPERS ACCOMPANYING- [201] geres; ce qui rdsulte, d'ailleurs, *implicitement des dispositions de I'art. 85, qui s'occupe d'une nianifere spdciale des simples par- ticuliers." Le m6me auteur invoque a I'appui de son opinion les termes de I'art. 2 du code de 1791, 2« part., sect. 1, dont la disposition 6tait, en effet, con9ue dans ce sens. Mais aujourd'hui, 11 n'en peut 6tre ainsi ; et devant la g6n6ralit6 du mot quiconque, dont se sert I'art. 84, aucune in- certitude ne peut exister sur ce point, (V. le r^quis. de M. Dupiu dans I'affaire Jauge, No. 28.) 68. Pour constituer le crime prevu par I'art. 84, une premiere condi- tion est n6cessaire, c'est que les actions incrimia6es soient des actions Jiostiles. Mais que doit-on entendre par ce mot 1 La loi ne I'a pas dit, et ne poiivait le dire ; car ce caractere ne depend pas moins de la nature des rapports qui existent entre les deux nations que de la nature des circonstances elles-memes. Le fait le plus grave, le plus important, passera inapergu et n'amenera aucun conflit, si la nation au prejudice de laquelle il a eu lieu est lii§e par des rapports d'intimit^ avec la Prance, ou si elle n'est pas en 6tat de soutenir la guerre. Tandis que le fait le plus insigniflant, I'offense la plus l^gt^re, ameuera une conflagration si cette nation n'attend qu'un pr^texte pour eclater. ■ G'est done [202] avec sagesse que la loi a refus6 *de d^flnir les actes hostiles dont il s'agit, se bornant ^ incriminer leur r^sultat, a savoir d'exposer I'^tat d, une declaration de guerre. Bt il a 6t6 jug6, par application de' cet article, que des emprunts n6goci(5s au nom d'un prince en' guerre' avec une nation alli6e ont pu 6tre regard^s comme ne constituant pas des actions hostiles die nature a exposer la France a une declaration de guerre, sans que cette appreciation tombe sous la censure de la cour de cassation, (crim. r6q., 28 nov. 1834, aft". Jauge, No. 28.) 69. Une secoude condition constitutive du crime est que les actes n'aient pas ete approuves par le gouvernement. Eemarquons que la loi ne dit pas autoriser, parce que I'autorisation, etant anterieure au fait, le rend legitime et licite sans que, dans aucun cas, il puisse donner lieu ^ des poursuites ; tandis que I'approbation, etant posterieure, ne change pas le caractere du fait, mais en assure seulement I'impunite. Si le gouvernement approuve les actes hostiles, il se les approprie, il en assume la responsabilite et les consequences, et il met I'agent k convert de toutes poursuites. 70. Une troisifeme condition du crime, c'est que les actions hostiles aient expose I'etat a une declaration de guerre. Eemarquons que [203] la loi ne dit pas k des hostilites, mais a une declaration * de guerre, (V. crim. req., 28 novembre 1834, aff. Jauge, No. 28.) MM. Chau- veau et Helie, t. 2, p. 61, peusent que le code aurait mieux fait de n'exiger que des actes hostiles. "Gar," disent-ils, "les agressions qui se manifestent le plus souvent, soit sur les fronti^res entre les habitants riverains, soit en mer sur des navires isoies, peuveut provoquer des actes de la meine nature, mais non une declaration de guerre. Dans I'etat politique de I'Burope, il est diflicile que le fait isoie d'un simple citoyen, et mfime d'un fonctionnaire public, puisse allumer la guerre entre deux nations. Une declaration de guerre n'intervient pas sans que I'etat offense ait deraande des explications ; et dfes que I'agression a ete comraise k I'insu du gouvernement auquel appartient I'agent, des que le gouvernement la desavoue hautement, il est Improbable que la guerre puisse jamais en etre la consequence." Mais ne peut-il pas arriver que le gouvernement offense "ne veuille-pas se contenter de ce desaveu ; qu'exagerant I'offense, il exagfere nussi ses pretentions ; qu'il' exige une reparation humiliante pour la Prance, et des satisfactions auxquelles celle-ci ne puisse souscrirel COUNTER CASE OF THE UNITED STATES. 3 71. La commission du corps l^gislatif avait propos6 (stance du 9 Janvier 1810) de prononcer la peine de mort au lieu de celle de la [204] deportation pour le *cas oti les actes hostiles auraient 6t4 suivis de la guerre, la peiiie de la deportation n'^tant plus suffjsante lorsqu'an pareil fl^au a suivi le crime. Le couseil d'etat repoussa cette proposition par le motif que Part. 84 suppose que Fagent n'a pas ealcuM les consequences de sa conduite, et que, s'il en etait autrement, s'il y avait eu des intelligences et manoeuvres, le fait tomberait sous I'application des articles precedents. Cette reponse est-elle exacte d'une manifere absolue? MM. Chauveau et Helie, t. 2, p. 64, ne lepensent pas. " Bans doute," disent-ils, " si les actions hostiles etaient le fruit d'intel- ligences entretenues avec les puissances etrangeres, les art. 76 pour- raient 6tre, suivant les cas, applicables ; mais si ces actions, quoique commises avec premeditation, n'avaientete concertees avec aucun agent etranger, precedees d'aucun acte preparatoire de la traliison, elles ne rentreraient dans aucune autre disposition de la mSme section." 72. Lors de la revision ducode, il fut, au contraire, propose ^ la cham- bre des deputes, par un de ses membres, de substituer la detention temporaire k la deportation. L'auteur justiflait cette proposition sur le motif que ce crime, si toutefois il est possible, est inspire, du moins dans la plupart des circon stances, par des sentiments de bravoure, de [205] generosite m§me, irreflecMs *sans doute, mais qui ne presentent pas dans la culpabilite ce caractere de gravite signaie dans I'art. 82. " La chambre ne -croit pas devoir adopter cet amendement, sur I'observation da rapporteur de la loi, que, si on jiige ce fait par I'inten- tion, il n'est pas d'intention plus coupable que celle qui, ne tenant aucun compte des plus graves interSts de la France, I'expose aux chances et aux malheurs de la guerre." Par suite, la peine de la depor- tation fut maintenue. Au surplus, il importe de remarquer que ce ne sont pas les actes hos- tiles, les violences ou les depredations que la loi punit, mais seulement le fait d'avoir, par ces actes, expose I'etat k une declaration de guerre, (V. crim. req., 18 juin 1824, aff. Herpin, vo. compet. crim., No. 112.) 73. L'art. 85 porte : " Quiconque aura, par des actes non-approuves par le gouvernement, expose des Prangais 4 eprouver des represailles, sera puni du bannissement. Eemarquons, d'abord, que la loi ne dit pas quiconque aura attirS des represailles, m'ais quiconque aura expose : d'ou il suit qu'il importe peu, pour I'incrimination, que les represailles n'aient pas eu lieu ; qu'il sufflt que des Prangais aient ete exposes a en eprouver. Quelle doit etre la nature des actes dont parle cet [206] article capables d'exposer les Frau*5ais a des represailles? Cela ne pent s'entendre que d'outrages et voies de fait commis envers des sujets d'une nation etrangfere, et non de simples injures, ainsi que le portait, d'ailleurs, le projet primitif, (Oonf. MM. Carnot surle dit article, Chauveau et Heiie, t. 2, p. 61.) 74. Est-il necessaire que les represailles aient ete cp'mmandees par le gouvernement etranger ? MM. Chauveau et Helie, t. 2, p. 62, se pro- noncent pour I'afiSrmative. II nous semble impossible d'admettre cette restriction. Quand la loi se borne k dire : Quiconqe aura . exposi des Frangais a 6prouver des represailles sera puni . . . etc., iln'est evidemment pas permis de I'interpreter comme si elle disait: Quiconque aura . . . provoque contre des Frangais des represailles de la part d^un gouvernement Mranger, etc. Ainsi done, nous pensons que si, par exemple, des Anglais avaient regu de la part de Frangais, des ou- trages de telle nature qu'ils pussent provoquer des represailles contre les Frangais qui se trouvent en Angleterre, les auteurs de ces outrages 4 TEEATY OP WASHINGTON PAPERS ACCOMPANYING devraient 6tre punis, conformement a. I'art. 85, sans qu'ii fiit n^cessaire que les represailles eussent 6te commandoes par le gouvernement anglais. Tel est aussi Favis deM. Hans. Et il a 6t6 jug6, ^ cet [207] 6gard, que les violences exerc6es par des Frangais envers *ua poste de la douane Otrangere a I'effet d'enlever des objets introduits par contrebande sur le territorie stranger, et saisis par les pr6pos6s ^ la douane, constituent des actions hostiles, dans le sens de Part. 84, c. p6n., ou tout au moins des actes qui exposeraient des Frangais ^ Oprouver des represailles dans le sens de I'art. 85 du mfime code, (Grenoble, 25 avril 1831.) (Min., pub., c. Gayen, etc.) La Cour :— Attendu qu'il rOsulte de la pro- cedure que, le 25 fgvrier 1831, a onze heures du soir, uu attroupement de quarante A cinquante personnes, habitant sur le territoire frangais, s'est port6 sur le territoire sarde, oti il a attaqu6 le poste de la douane sarde et s'est livrO ^ divers actes de violence envers les pr6pos6s ; que le poste a 6t6 envahi et le corps-de-garde d6sarm6 ; qu'un coup de cara- bine a 6t6 tir6 sur I'uu des pr6pos6s ; que les autres armes ont 6t6 re- tenues et dechargOes ; que les portes d'une remise et d'une Ocurie ont 6t6 bris6es, h I'effet d-enlever un touneau de vin, qui avait et6 introduit, par contrebande, sur le territoire sarde, ainsi qu'un char et des vaches qui avaient servi de moyens de transport, lesquels objets avaient 6t6 saisis par les pr0pos6s de la douane, et que ces objets, ainsi violemment [208] enlev^s, ont 6t6 ramenOs a la *frontiere ; que Joseph Gayen, Pierre Malenjon et Antoine Magniu sont suffisamment pr6venus d'avoir fait partie de cet attroupement, d'en avoir 6t6 les chefs et d'avoir, d'une maniere active, particip6 k I'attaque du post de la douane sarde et aux actes de violence ci-dessus 6nonc^s; que cesfaitsconstituentdes actions hostiles non-approuv6es par le gouvernement, lesquelles exposaient l'6tat •k une declaration de guerre, ou tout au moins des actes non-approuv6s par le gouvernement, lesquels exposaient des Frangais h Oprouver des represailles, crimes prevus par les art. 84 et 85, c. pea., et emportant peine afflictive et infamante; — attendu qu'il resulte de la dite procedure qu'AntoinePerret est suffisamment prevenu d'avoir, par dons, promesses, machinations ou artifices coupables, provoquO les auteurs des crimes ei-dessus 6nonc6s ^ les commettre, ou donue des instructions pour les commettre; — attendu que le fait est qualifie crime par la loi ; qu'il est pr6vu par les art. 59 et 60, c. p6n., et qu'il importe peine afflictive et infamante ; — attendu qu'aux termes de I'art. 5, c. inst. crim., tout Fran- gais qui s'est rendu coupable, hors du territoire de France, d'un crime attentatoire d, la siirete de l'6tat, pent 6tre poursuivi, jug6 et puni en France, d'apres les dispositions des lois fran5aises : — p'ar ces motifs, de- clare qu'il y a lieu k accusation centre Antoine Perret, Joseph Gayen, etc. Du 25 avril 1831, c. de Grenoble, cb. rOun. MM. Yignes, pr! Moyne, pr.-gen. [209] *B. [Translation.] Dalloz, General Jurisprudence, vol. XIV, p. 531. Section 5.— Acts which may expose a state to a declaration of war, and ' its citizens to reprisals. 67. Here it is no longer a question of treason ; it is a question of simple acts which tend less to show the perversity or immorality of the per- former than his imprudence, his temerity, or his foolishness. They are COUNTER CASE OF THE UNITED STATES. 5 acts which, according to the circumstances under which they happen, might expose the state to a declaration of war, or the citizens to repri- sals. They are the subject of two articles. " Whoever," says article 84, penal code, "shall have exposed the state to a declaration of war by hos- tile acts not approved by the government, shall be punished by banish- ment; and, if war should follow, by deportation." Not understanding how the act of a private individual could be of enough importance to ex- pose the sjiate to a declaration of war, Carnotwasof theopinion that this article could only apply to government agents. He says : " The acts of government agents alone can bring about a war between France and foreign nations ; we see this also explicitly set forth in article 85, which treats particularly of private individuals." The same author refers in support of his opinion to the terms of article 2 of the code of [210] 1791, part *2, section 1, which is indeed to this effect ; but at the present time this is not the fact, and, in face of the generalty of the word whoever, used in article 84, no uncertainty can possibly exist on this point. (V. the " r6quisitoire" de M. Dupin, in the Jauge case.) 68. A first condition is necessary to constitute the crime provided for in article 84 ; it is that the imputed actions should be hostile. What is then to be understood by this word % The law does not answer this question, nor could it do so, for the definition depends no less upon the nature of the relations existing between the two nations than upon the circumstances under which the act is committed. The gravest and most important act would pass unnoticed and would not lead to a conflict, if the nation to whose prejudice it had been done should be bound by ties of friendship to France, or should not be in condition to carry on war, while on the other hand the most insignificant act, the smallest offense, would lead to an outbreak, if this nation should be only waiting for a ■pretext to commence operations. It was, therefore, wise to refuse to define hostile acts which might expose the state to a declaration of war in the law, and to confine it simply to an exposition of their result. And in accordance with this article, it has been decided that the negotiation of loans in the name of a prince at war with an ally may not be regarded as constituting a hostile action of a nature to expose France to a [211] declaration of war, unless this action falls under the *censure of the court of cassation.— (Grim. rej. 28 Nov., 1834— Jauge case, No. 28.) 69. A second condition constituting the crime is that the acts shall not have been approved by the government. Observe that the law does not say authorized, for the authorization, having been previous to the act, renders it legitimate and lawful, and no prosecution is ever possible; while, on the other hand, approbation is posterior to the act, and does not change its character, but only insures immunity from its conse- quences. If government approves hostile acts, it appropriates them, it assumes the responsibility and consequences of them, and protects the agent from all prosecution. 70. A third condition to th6 crime is that the hostile acts should have exposed the state to a declaration of war. Observe the law does not say to hostilities, but to a declaratiou of war, (V. Grim, rej., 28 Nov., 1834, Jauge case, No. 28; MM. Ghauveau & H16i6, vol. 2, p. 61.) Think that it would have been better if the code had demanded hostile acts simple, "for," they say, "the aggressions which are most often mani- fested, either on the frontiers between the border inhabitants, or on the sea on isolated islands, may lead to acts of the same nature, but not a declaration of war." In the present state of Europe, the isolated act of a citizen, or even of a government functionary, would not be 6 TREATY OF WASHINGTON — PAPERS ACCOMPANYING likely to lead to a war. A declaration of war does not take place until the injured state has asked explanations, and if the govern- [212] ment *to which the aggressor belongs has had no connivance in the act, then, as soon as this government disavows it, it is improbable that a war can follow." But may it not happen that the offended gov- ernment is not contented with this disavowal ; that, exaggerating the offense, it also exaggerates its demands ; that it requires reparation humiliating to France, and satisfaction, to which the latter cannot agree 1 71. The commission of the Corps L^gislatif proposed (meeting of the 9th of January, 1810) to declare the punishment to be death instead of deportation in case the hostile acts should lead to war, the punishment of depo/rtation not being sufficient when such a blow has followed the crime. ' The Oonseil d'fitat rejected this motion because article 84 sup- poses that the agent has not calculated the result of his actions ; and even if it were otherwise, if there had been trickery or an understand- ing, the act would fall under the preceding articles. Is this answer abso- lutely correct? MM. Chauveau & H61i6 (v. 2, p. 64) do not think so. " Without doubt," they say, " if the hostile actions were the result of an understanding with foreign powers, article 76 could be applied in accordance with the case ; but if the acts had been concerted with no foreign power, had been preceded by no act preparatory to treason, although they were premeditated, they would come under no part of the same section." 72. On the other hand, at the time of the revision of the code, it was proposed by a member in the Chamber of Deputies to substitute [213] temporary detention for deportation. The author *supported his proposition by saying that in almost all cases, whenever this crime is possible, the criminal is actuated by a feeling of courage, even of generosity, thoughtless, undoubtedly, but presenting none of that depth of guilt assigned to it in article 82. " The chamber did not feel at lib- erty to adopt this amendment," according to the note of the law reporter, ^'for if one is to judge of the act by the intention, there is no intention more culpable than that which, not taking into account the grave inte- rests of France, exposes it to the chances and misfortunes of war ;" con- sequently the punishment of deportation was retained. Besides, it must be observed that it is not the hostile act, violence, or depredation that the law punishes, but only the fact of having by these Acts exposed the state to a declaration of war. — {V. crim. rej. 18th June, 1824; Herpin case, vo. comp. crim., No. 112.) 73. Article 85 reads : " Whoever shall haVe exposed the French to reprisals, by acts not approved by government, shall be punished by banishment." Observe, the law does not say whoever shall have caused reprisals, but whoever shall have exposed Frenchmen to them, whence it follows that for the charge it is of little account whether or not repri- sals have taken place; it is sutticient that French inhabitants have been •exposed to the danger of them. What sheuld be the nature of the acts spoken of in this article, capable to expose the inhabitants of France to the danger of reprisals I We can only understand them to be of the nature of outrages and acts of violence committed on the subjects [214] of a foreign natiou, and not of simple *losses, as the original draught had it.— (Oonf. MM. Carnot on the said art. ; Chauveau and H61i(5, v. 2, p. 61.) 74. Is it necessary that the reprisals shall have been ordered by the foreign governaient ? MM. Chauveau aud Heli6, vol. 2, p. 62, pro- nounce in the affirmative. It appears to us impossible to admit this COUNTER CASE OF THE UNITED STATES. 7 restriction when the law confines itself to saying : " Whoever shall have exposed Frenchmen to reprisals * * shall be punished," * * &c.- evidently this cannot be interpreted as if it, read: Whoever shall have provoked reprisals by a foreign government against Frenchmen, &c. Thus we are of opinion that if, for example, certain Englishmen Lad suffered outrages from certain Frenchmen, of such "a nature that they might provoke reprisals agaiust Frenchmen in England, these outrages should be punished, in conformity to article 85, without it being neces- sary that the reprisals should have been ordered by the English gov- ernment. Such is also the opinion of M. Hans; and it has been decided in this connection that violence exercised by Frenchmen toward the a,gents of the customs of a foreign government, the result of which was the removal of certain articles smuggled into the foreign territory, and seized by the officers, constituted hostile acts in the sense of article 84, penal code, or at least acts which would expose the French reprisals in the sense of article 85 of the same code, (Grenoble, 26th April, 1831 ; [215] Min. Public, c. Cayen, &c.) The court: Whereasfrom the case *we conclude, that dn the 25 th of February, 1831, at 11 o'clock in the evening, a mob of forty or fifty persons, inhabitants of French territory, went into Sardinian territory, where they attacked the post of the Sardin- ian customs, and committed various acts of violence on the officers; that the post was invaded and the corps-de- garde disarmed; that a carbine was fired at one of the overseers ; that the other arms were retained and discharged; that the doors of a coach-house and stable were broken in, in order to carry off" a tun of wine which had been smuggled into Sar- dinian territory, as well as a cart and some cows which had served as the means of transport, which objects had been seized by the inspect- ors of the customs; and that these objects, thus violently carried off, were brought back to the frontier ; that Joseph Cayen, Pierre Morlenjon, and Antoine Maguin are sufficiently convicted of having taken part with this mob, of having been its leaders, and of having participated in an active manner in the attack on the Sardinian post of customs and in the other acts of violence as aforesaid; that these acts constitute . hostile actions not approved by the government, which exposed the state to reprisals, crimes provided for in articles 84 and 85, penal code, and accompanied by a personal and infamous punishment : Whereas it results from the said procedure that Antoine Per- [216] ret is sufficiently convicted of having, by gifts, *promises, mach- inations of criminal artifices, instigated the authors of the afore- said crimes to commit them, or of haying given instructions to commit them ; whereas the act is defined by the law as a crime, and is provided for in articles 59 and 60, penal code, and is accompanied by a personal ajtrd infamous punishment; whereas, according to the terms of article 5, C. Inst. Grim., every Frenchman guilty outside of the territory of France of a crime endangcf ing the security of the state, can be proceeded against, convicted, and punished in France accqrding to the laws of France: Therefore it is declared that there is ground of accusation against An- toine Perret, Joseph Gayeu, «fcc. — (25th April, 1831, 0. of Grenoble, Oh. r6nn. MM. Vignes, pr. Moyne, pr.-g6n. [217] *0. Tliiorie du code penal d^Adolphe Ghauveau et Faustin HelU, troisieme Mition, tome 2e, pages 58 et seq., articles 84 et 85. II ne s'agit plus d'un crime de trahison: la loi ne soupgonne mfime aucune intelligence entre I'agent qu'elle inculpe et les eunemi.s de l'6tat; 8 TREATY OP WASHINGTON PAPEES ACCOMPANYING ce qu'elle punit, ce sont des actes imprudents et tem6raires, qui peuvent attirer sur les citoyens des repr^sailles ; sur l'6tat la guerre, avec ses chances et ses malheurs. " Si on n'avait pas mis dans le code," a dit un illustre magistrat (M.Dupin,r6quisitoiredans I'aflfaire Jauge), " des pemes centre I'homme qui expose son pays k la guerre, si le crime 6tait impum, il n'y aurait aucune satisfaction Mgale k donner a I'.etranger qui se plaint: la guerre serait le seul remade; ou, bien, on ferait comme chez les peu- ples anciens, on attacherait cet homme les mains derriere le dos avec une corde, on lui ferait franchir la frontiere, et on le livrerait k I'efcran- ger, pour qu'il puisse en faire justice. II y aurait inhumanity; il faut que le pays ait ses lois, qu'il y ait des juges frangais pourjuger et punir les coupables, afin qu'elle offre aux strangers une juste satisfac- [218] tion. La loifran§aise'*a conserve la dignity nationale en mettant parmi les crimes les faits de cette nature, et en r^servant le juge- ment &■ des juges frangais. Quelle que soit cette decision, elle devra 6tre respect6e ; alors, si on fait la guerre, elle sera juste." Eappelons le texte des deux articles : Akticle 84. ....•• • Article 85. ....•' • II est Evident que ces deux dispositions pr^voient le meme fait, mais en le supposant dans des especes diverses et en lui imprimant un caractere different. Nous allons successivement examiner ces deux hypotheses. M. Oarnot parait penser que Particle 84 ne s'applique qu'anx agents du gouvernement, et il se fonde sur ce qu'il n'y a que les agents qui, par des agressions hostiles ou des infractions aux trait^s, puissent exposer I'^tat ^ une declaration de guerre. Le code p6nal de 1791 por- tait, en effet, dans Particle 2 de la section Ifere de la 2hme partie : " Que, lorsqu'il a 6t6 commis quelques agressions hostiles ou infractions de traites, tendantes a. allumer la guerre entre la France et une nation [219J 6trangere . . . . le*miuistre qui aurait donn6 ou contre-sign6 Pordre, ou le commandant des forces nationales, de terre ou de mer, qui, sans ordre, aurait commis les dites agressions hostiles ou infractions de traits, serait puni de mort." Mais si le legislateur de 1791 n'avait cru devoir s'occuper que des actes hostiles du fonctionnaire, notre code a efface cette restriction ; Particle, en employant le mot quiconque, ne laisse aucun doute sur sa generality. La loi n'a point defini les actes hostiles, et pent fetre cette definition etait-elle impossible. En general les actes de cette nature empruntent toute leur valeur politique des circonstances dans lesquelles ils se pro- duiseut. Un fait grave, important, n'entrainera aucune consequence serieuse, s'il est commis envers une nation que des liens etroits d'amitie unissent a la France. Dans d'autres circonstances, le fait le plus mimim'e pent eiever un conflit et jeter Palarme au sein de deux nations. II faut done se borner a dire, dans les termes de la loi, que les actions hostiles sont toutesies actes materielsqui, non-approuves par le gouvernement, ont expose Petat k une declaration de guerre. [220] Ainsi, il ne suffirait pas que les *actes hostiles eiisseut expose tl de simples hostilites: loloi exige formellement, pour constituer le crime, le peril et Palarme d'une declaration de guerre. (Je point a ete so- lennellement reconnu par la cour de cassation dans Paffaire Jauge, . . . Et ceci nous donnera lieu de remarquer une sorte de lacune dans la loi. Dans Petat politique de PEurope, il est difficile que le fait isoie d'un simple citoyen, et m^me d'uu fonctionnaire public, puisse allumer la guerre entre deux nations. Une declaration de guerre n'iutervient pas sans que Petat offense ait demaude des explications. Et dfes que Pa- gression a ete commise i\ Pinsu du gouvernement auquel appartient COUNTER CASE OF THE UNITED STATES 9 I'agent, des que le gouyernement la d^savoue hautement, il est impro- bable que la guerre puisse jamais en 6tre la consequence. II suit de 1^, etc'est aussi ce que conflrme I'exp^rience, quel'art. 84, quoique destine i r^primer un fait coupable, doit demeurer sans application dans nos lois. Mais il en eut 6t6 autrement si le 16gislateur avait modifl6 Tune des circonstances constitutives de ce crime, s'il s'6tait born6 k exiger que les actes hostiles fussent de nature h exposer I'^tat, • non ^ une d^clatation de guerre, mais k de simples actes hos- [221] tiles : car les agressions qui se manifestent le plus souvent, *soit sur les frontiferes entre des habitants riverains, soit en mer sur des navires isol6s, peuvent i^rovoquer des actes de la m6me nature, mais non une declaration de guerre. On pourrait objecter que le cas oil I'agression provoque des actes bostiles env'ers I'^tat rentre dans les ter- mes de I'art. 85. Oe serait une erreur : cet article ne punit que les actes qui exposent les Franjais kdes repr^sailles ; or, cette, expression, oppos6e aux actes qui exposent VMat k la guerre dans I'art. 84, indiqne claire- ment que le premier de ces articles n'a pr6vu que les repr6sailles exer- o^es contre les particuliers, et nous verrons tout k I'heure que tel est aussi le sens de cette disposition. Eeste, done, I'hypothfese oil I'agression a attire des hostilites, mais non la guerre envers le pays ; et cette hy- potbese echappe k I'une et k I'autre de ces' deux incriminations. Que faut-il entendre par des actes qui exposent les Frangais a des represailles ? M. Carnot pense que le legislateur a voulu parler des outrages et voies defait commis envers des sujets d'une nation etrangere. [L' article 136 du code prussienporte : "Oelui qui sepermet des outrages contre des sujets d'une puissance etrangfere, m6me hors du royaume, et expose ainsi les sujets prussiens a des represailles de la part du gouvernement stranger, [222] doit 6tre *punicommes'il eut commis le d61it dans l'int6rieur.] En effet, puisque ces actes n'exposent que des Fran§ais individuelle- ment, et non la society frangaise, k des represailles, il s'ensuit que dans la provision de la loi ils n'ont dii oftenser egalement que des individus. Cepen- dant, il nous semble necessaire queles represailles soient commandees par le gouvernement etranger. Ainsi nous ne pourrions admettre avec M. Hans que I'insulte faite k un Anglais a Bruxelles put motiver I'applica- tion de cet article, par cela seul que les Beiges qui resident en Angle- terre seraient exposes a des represailles, avant m^me qu'aucune decision de I'autorite 6trangere n'eut prononce de represailles. Ce ne sont Ik ni les faits ni les repr6sailles que la loi a ens en vue. En general elle a voulu prevenir les voies de fait et les depredations qui peuvent s'exercer sur les frontieres d'un royaume, sur un territoire ami. Sans doute, les especes peuvent varier a I'inflni, mais il faut que les violences soient assez graves pour exposer k des represailles ; et ce dernier terme, dans le droit des gens, exige I'intervention d'une autorite etrangere. An reste, on ne doit pas perdre de vue, dans I'application de [223] ces deux articles, que ce ne sont pas les actes hostiles, les * vio- lences on les depredations que la loi punit, mais seulement le fait d'avoir par ces actes expose I'etat a une declaration de guerre 6u les Frangais k des represailles. [Arr6t de cassation, 18 juin 1824. (Bourguignon, tome 3, page. 91.)] O'est la paix, ce sont les interets na- tionaux qu'elle a voulu proteger; c'est le prejudice eventuel que les actes peuvent produire qui devient la base de la peine. Ainsi la crimi- nalite ne se puise pas dans la gravite intrinsfeque des faits, mais dans leur importance politique, dans les chances de guerre ou de represailles qu'ils ont soulevees; en un mot, dans la perturbation politique qu'ils ont cause. 10 TREATY OF WASHINGTON PAPERS ACCOMPANYING Ces dispositions ont ete rarement appliqu^es; il importe dfes lors de recueillir avec plus de soin les espfeces oii cette application a eu lieu. Le Sieur Herpin avait capture un navire sarde pendant qu'il commandait un navire colombien ; accus6 d'avoir commis un acta hostile qui expo- sait la France a une declaration de guerre de la Sardaigne, ou du moins 4 des repr6sailles, il repondait que ce fait ne rentrait point dans les termes des art. 84 et 85, et que, d'ailleurs, commis en pays stranger, il n'6tait pas justiciable des tribunaux de France. La cour de [224] * cassation a rejet^ ces exceptions en se fondant sur ce que toute la criminality prevue par ces articles consistait uniqnement dans le fait d'avoir expose I'etat 4 une declaration de guerre ou les Fran9ais 4 des repr^sailles ; que le prejudice ^ventuel faisait rentrer I'acte in- criming dans la categoric des faits que les art. 5, 6, et 7 du code d'in- struction criminelle deferent aux tribunaux frangais, et que cet acte r^unissait, d'ailleurs, les caracteres pr6vus et punis par les art. 84 et 85, De cet arrfit, qui a jug(5 au fond en point de fait, il r^sulte cette seule regie, que les crimes prevus par cet .article peuvent, lorsqu'ils ont 6t6 commis eu pays stranger, et qu'ils se trouvent dans les cas prevus par le code d'instruction criminelle, 6tre I'objet d'une poursuite en France. Dans une seconde espece qui semble de nature 4 se renouveler d'avan- tage, un attroupement de 50 Fran9ais s'6tait port^sur le territoire sarde, et avait exerc^ des violences envers un poste de la douane etrangere, dans le but d'enlever des objets introduits en contrebande dans la Sardaigne et que les proposes avaient saisis. La chambre d'accusation de la cour royale de Grenoble a reconuu que ces faits constituaient des actes hostiles non-approuv6s par le gouvernement, lesquels ex: [225] posaient *l'6tat a une declaration de guerre; ou tout au moins des actes non approuv^s par le gouvernement, lesquels exposaient des Frangais a 6prouver des represailles. II est a remarquer que dans cet arrfet, comme dans le precedent, les jug«s out cru necessaire d'accu- muler la double accusation des deux crimes prevus par les art. 84 et 85. C'est qu'il est evident que la premifere, circonscrite dans les termes trop restrictifs de Part. 84, n'a que peu de 'chances de succes. L'observatiou que nous avons faite plus haut se trouve done confirmee par la pra- tique.— Jurisprudence des codes criminels par M. Bourgnignon. tome 3«, p. 86 ; Oommentaire sur le code penal, par M. Oarnot, ' seconde edition, tome 1", pp. 300 et seqs. ; Traite theorique et pratique du droit criminel frangais, par M. Kauter, tome l""", p. 418, N"o. 287. [226] *0. [Translatiou.] Theory of the penal code ; hy Adolphe Chauveau and Faustin Seine : third edition, second volume, pages 58 et seq, lit. 84-5. The crime of treason is no longer in question. The law does no sup- pose any understanding to exist between the agent that it arraigns and the enemies of the state ; it punishes the imprudent acts and acts of temerity which might make her citizens suffer from reprisals, or bring a war with all its chances and misfortunes upon the state. If said a famous magistrate, (M. Dupin, requisitoire in the Jauge case,) thev had not ordered in the code punishment for him who exposes his country to war, if the crime were not punishable, there would be no legal satisfac- tion to the foreign nation which complained. War would be the only COUNTER CASE 6f THE UNITED STATES. 11 remedy ; or we would be obliged to follow the ancients, who tied the fljan's hands behind his back with a cord, made him cross the frontier, and gave him up to the foreign nation that it might administer justice on his case. This would be unnatural. A country must have its own laws and its own judges to judge and punish guilty persons, in order that it may offer to a foreign state a just satisfaction. French law has preserved the national dignity in putting among crimes acts of this na- ture, and in reserving judgment on them for French judges. [227] . * Whatever be this decision it should be respected ; then, if war fol- lows, it will be a just one. Let us look at the text of the articles : Aet. 84. ***** * ART. 85. ***** * It is evident that the two arrangements provide for the same action, but supposing it divided into different species and imprinting different characters upon it. We will successively examine these two hypo- theses. M. Carnot appeared to think that article 84 applied only to govern- ment agents, and he depends upon the statement that only agents of the government can, by hostile aggressions, and infractions of treaties, expose the state to a declaration of war. The penal code of 1791, in fact, reads, article 2, section' 1, part 2 : "If any hostile aggression or in- fraction of a treaty has been committed, which tends to cause war be- tween France and a foreign country, * * * the minister who shall have given or countersigued the order, or the commander of the national forces on land or water who, without orders, shall have committed the hostile aggression or infraction of treaty, shall be punished by death." But, although the legislator' of 1791 occupied himself only with the hostile acts of public functionaries, our code has effaced this restriction. The article in employing the word whoever left no doubt as to its gener- ality. The law has oot defined hostile aots, and perhaps a [228] def^inition was impossible. Generally, acts of this nature get all their political value from the circumstances under which they take place. A grave and important act will have no serious consequence if committed against a nation closely bound in friendship to France, Under other circumstances, the least act might occasion a conflict and throw the nation into a state of alarm. It is necessary, then, to confine pneself to the terms of the law, that hostile actions are. all material acts which, not being approved by the government, have exposed the state to a declaration of war. Thus it would not be enough that the hostile acts should have simply caused an exposure to hostilities ; the law formally demands, in order to constitute the crime, the peril and alarm of a declaration of war. This point was solemnly recognized by the court of cassation in the » Jauge case. And this gives us occasion to observe what may be regarded as a ■ deficiency in the law. In the political state of Europe it would be diffi- cult for 'the isolated act of a simple citizen, or even of a public func- tionary, to cause a war between two nations. A declaration of war does not take place until the offended State has demanded explanations, and if the act has been committed without connivance of the govern- [229] ment— connivance to which the agent belongs— *as soon as that government disavows it, it is improbable that war will result. From this it follows, and we are confirmed by experience that article 84, although intended to suppress a culpable act, must remain in our laws without application. But it would have been otherwise if the legislators had modified one of the details constituting the crime ; if 12 TREATY OP WASHINGTON PAPERS ACCOMPANYING they had confined themselves to demanding that the hostile acts should be of a nature not to expose the State to a declaration of war, but to expose it to simple acts of hostility ; for the aggressions which are most often made, either on the frontier between the border inhabitants, or in the sea on an isolated island, may provoke acts of the same na- ture, but not a declaration of war. It might be objected that the case where the aggression provokes hostilities against the State is provided for in the terms of article 85. This would be incorrect ; this article punishes only those who expose the French to the danger of reprisals. Then this expression, opposed to the one relative to the acts which ex- pose the State to war in article 84, indicates clearly that the first of these articles only provided for reprisals against private persons, and we shall presently see that this is also the meaning of this provision. The hypothesis now remains where the aggression has drawn on hos- tilities against the country, but not war ; but this hypothesis does [230] not *enter into either of these incriminations. What do we understand by acts which expose the French to reprisals'? Mr. Carnot thinks that the legislature meant outrages and acts of violence committed against the subjects of a foreign nation.^ In fact, since these acts expose the French individually only to repri- sals, and not society at large in France, it therefore follows that in the law provision is made for the offenses of individuals only. Neverthe- less, it apijears necessary to us that the reprisals shpuld be ordered by the foreign government. Neither can we agree with M. Hans that an insult given to an Englishman in Brussels would be a reason for apply- ing this article, because Belgians residing in London might be exposed to reprisals even before any decision of the foreign authorities had pro- nounced in favor of reprisals. Here are neither the acts nor the repri- sals had in view by the law. In general, it intended to prevent the acts of violence and the depredations against a friendly territory which' [231] might take place on the frontiers of the kingdom. Un*doubtedly there may be an infinite A'ariety of such acts of violence ; but they must be so aggravated as to cause danger of reprisals, and at last, according to the law of nations, to demand the intervention of a for- eign power. In the application of these two articles we should not lose sight of the fact that it is not the hostile acts, the violence, or the depredations that the law punishes, but only the fact of having, by these acts, ex- posed the state to the danger of a declaration of war, or the French to reprisals.^ The law was meant to insure peace and protect the national interests. It is the eventual injury that the actions may produce which forms the foundation of the punishment. Thus the criminality is not in the intrinsic gravity of the acts, but in their political importance, in the probabilities of war or reprisals to which they have given rise ; in a word, in the political agitation which they have occasioned. The provisions here made have been rarely applied; it is important, however, to collect carefully the cases where an application has been made. One Hoquin (?) captured a Sardinian vessel while in command of a Colombian vessel, accused of having committed a hostile act which exposed France to a declaration of war by Sardinia, or, at least, to re- 1 Article 136 of the Prussian code reads : He who commits outr.iges on subjects of .a foreign power, even outside the kingdom, and thus exposes Prussian subjects to repri- sals on tlie part of the foreign government, shall be punished as if he had committed the offense in the interior. i'Deoree of cassation, 18 June, 1824. CBourguignon, vol. 3, p. SI.) COUNTEE CASE OP THE UNITED STATES. 13 prisals ; he answered that this act was not included in the terms [232] of articles 84 *and 85, and that besides being committed in a for- eign country, the tribunals of France had not jurisdiction. The court of cassation rejected these exceptions, supporting itself by saying that the criminality provided for in these articles was simply the fact of having exposed the state to a declaration of war, or the JFrench to reprisals ; that the eventual injury was what brought the act within the category of articles 5, 6, and 7 of the code of Inst. Crim., relferring to French tribunals ; and besides, this act recognized the acts provided for and punished by articles 84, 85. From this opinion, which decided fundamentally on point of facts, this rule follows that the crimes pro- vided for in these articles may be prosecuted in France when they have been committed in a foreign country, and come under the provisions of the code of Orim. Inst. A second case of a kind which appears to be likely to come up again, is as follows : A mob of fifty Frenchmen went upon Sardinian territory, and used violence against the foreign post of customs in order to carry off certain objects smuggled into Sardinia, and which had been seized by the officers. The " Chambred accusation " of the royal court of Gre- noble declared that these acts constituted hostile acts not approved by government, which exposed the state to a declaration of war, or, at least, acts not approved by government, which exposed the French to reprisals. And in this opinion we have to observe, as in the [233] *preceding one, that the judges thought it necessary to use a double accusation of the two crimes provided for in articles 84 and 85. For it is evident that the first accusation has little chance of success, on account of the too restricted wording of article 84. The observation which we made above is thus confirmed by practice. — (See also Jurisprudence of Criminal Codes, by W. Bourguignon, 3 vol., p. 86 ; Commentary on the Penal Code, by In. Carnot, 2d edition, 1 vol., p. 300 etseq.; Historical Practical Treatise on French Criminal Law, by M. Eauter, 1 vol., p. .418, No. 287.) [234] *D. Dalloz, Jurisprudence generate, tome XXXIV, repartir, p. 1680. DuvERG-iER, Collection des lois, etc., tome 25, 10-11 avril 1825. — Loi po ur la surety de la navigation et du commerce maritime. Tit. I. — Du Crime de Piraterib. Art. I. Seront poursnivis et jug6s comme pirates : 1° Tout individu faisant partie de I'equipage d'un navire ou batiment de mer quelconque, arm^ et naviguant sans 6tre on avoir 6t6 munt pour le voyage de passe- port, role d'^quipage, commissions ou aiitres actes constatant la 16giti- mit^del'exp^dition ; 2° Tout commandant d'un 'navire ou batiment de mer arm6 et porteur de commissions d61ivr6es par deux ou plusieurs puis- sances ou 6tats differents. II. Serontpoursuiviset jug6s comme pirates: l^Tout individu faisant partie de Fequipage d'un navire ou batiment de mer fran§ais, lequel commettrait, h main arm6e, des actes de depredation ou de violence, soit en vers des navires fran9ais ou des navires d'une puissance avec laquelle la France ne serait pas en 6tat de guerre, soit envers les Equipages ou chargements de ces navires ; 2" Tout individu faisant partie de I'^qui- page d'un navire ou batiment de mer stranger, lequel, hors l'6tat [235] de guerre et sans 6tre pourvu de lettres de marque *ou de com- missions regulieres, commettrait les dits actes envers des navires 14 TREATY OF WASHINGTON PAPERS ACCOMPANYING frangais, leurs Equipages ou chargements ; 3" Le capitaine et les officiers de tout navire ou batiment de mer quelconque qui aurait commis des actes d'hostilit6 sous un pavilion autre que celui de l'6tat dont il aurait commission. III. Seront 6galement poursuivis et jug6s comme pirates: 1° Tout Frangais ou naturalist Pran9ais qui, sans I'autorisation du roi, prendrait commission d'une puissance 6trangfere pour commander un navire ou batiment de mer arm6 en course; 2° Tont Pran9ais ou naturalist Pran- gais qui, ayant obtenu, mfime avec I'autorisation du roi, commission d'une puissance 6trangere pour commander un navire ou batiment de mer arm^, commettrait des actes d'hostilit6 en vers des navires frangais, leurs Equipages ou chargements. IV. Seront encore poursuivis et jug6s comme pirates : 1" Tout individu faisant partie de l'6quii)age d'un navire ou batiment de mer fran§ais qui, par fraude ou violence envers le capitaine ou commandant, s'emparerait du dit batiment; 2" Tout individu faisant partie de I'^quipage d'uti navire ou batiment de mer fran§ais qui le livrerait k des pirates ou k I'ennemi. [236] ' *D." ^ [Translation.] Dalloz, General Jurisprudence, vol. :sxxiv, p. 1680 et seq. DuvEEGfiEE, Collection of Laws, &c., vol. 25; 10, 11, April, 1825. Law for tlie safety of maritime navigation and commerce. TITLE I. — The crijie op piracy. Art. 1. To be prosecuted and convicted as pirates : 1. Every indi- vidual forming part of the crew of any armed ship, or vessel -whatever, sailing without passport, manifest, commission, or other papers showing the legality of the voyage. 2. Every commander of armed vessel carry- ing the commissions of two or more different powers or states. 2. To be prosecuted and convicted as pirates: 1. Every individual forming part of the crew of a French vessel, which has by force com- mitted acts of depredation or violence, either against French vessels or those of a power with which France is not in state of war, or their crews, or cargoes. 2. Every individual belonging to the crew of any foreign vessel that commits the said acts against French vessels, their crews or cargoes, there being no war between the countries at the time, and the vessel not being provided with letters of marque or regular commissions. 3. The captain and officers of any vessel whatever which shall have committed acts of hostility under the flag of a country other than that of the state whose commission it carries. 3. Also to be prosecuted and convicted as pirates : 1. Every French- roo^i Tf,! or naturalized Frenchman, who, without the authorization [261 \ ot the King, shall take a commission *from a foreign power to command an armed vessel. 2. Every Frenchman, or naturalized Frenchman, who, having obtained a commission from a foreign power to command an armed vessel, even with the authorization of the Kino- shall commit acts of hostility against French vessels, their crews or cargoes. ' ' 4. Also to be prosecuted and convicted as pirates : 1. Every individual forming part of the crew of a French vessel, that, by fraud or violence toward the captain, shall have obtained possession of the said vessel 2. Every individual forming part of the crew of a French vessel that Shall have given it up to pirates, or the enemy. COUNTER CASE OF THE UNITED STATES.- 15 [238] *No. 3.— THE AEMAN CONTEACT. E, Consultation de M. J^erryer. L'ancien avocat soussign^, vu le m^moire k consulter pr6sent6 au uom du gouvernement des Eltats-TJnis d'Am^rique, ensemble les pieces justiflcatives gui y sont jointes, d61iberaiit sur les questions, qui lui soiit soumises, est d'avis des resolutions suivantes : . De I'expose contenu dans le m^moire 4 consulter, et des documents qui I'accompagnent, r6sulte la preuve complete des faits qu'il importe d'abord dex^sumer. En 1861, au mois de f6vri§r, plusieurs 6tats du sud de I'Am^rique Septentrionale, r^gie alors par la Constitution federale des JStats-Unis, r^solurent de se s6parer des Etats du nord, et se reunirent en un congrfes pour constituer le gouvernement des J^tats-Confederes WAmerique. La.guerre entre les confed^r^s et le gouvernement f^dferal 6clata dansle mois d'avril. Au 10 juin, de la mfime ann6e, parut dans la partie officielle du [239] Moniteur une declaration *soumise par le ministre des affaires etrangferes,^ FEmpereur des Pran9ais et revetue de son approba- tion. Par cet acte solennel, I'Empefeur, prenant en consideration l'6tat de paix qui existe entre la Prance et les Mats- Uuis d'Amerique, r6solut de maintenir une stricte neutrality dans la lutte engag^e entre le gouverne- ment de V Union et les etats qui pr6tendent former une confederation particuliere, declare, entre autres dispositions : 3°. II est interdit h, tout Franfais de prendre commission de I'une des deux parties pour armer des valsseaus de guerre . . . ou de conoourir, d'une mauifere quelconque, ^ I'^quipemeut ou I'armement d'un navire de guerre ou corsaire de I'uue des parties. 5°. Les Frangais riSsidant en France ou k I'etranger devront i?gale- ment s'abstenir de tout fait qui, commis on violation des lois do I'empire ou du droit des gens, pourrait gtre consid6r6 comme un acte hostile a I'une des deux parties et contraire £ la neutrality que nous avons rfeolu d'adopter. La declaration imperiale se termine en ces termes: [240] Les oontrevenants aux defenses et recommau*dations contenues dans la presente declaration serontpoursuivis, s'il y a lieu, couform^ment aux dispositions de la loi du 10 avril 1825, et aux articles 84 et 85 du Code p6nal, sans prejudice de I'application qu'il pourrait y avoir lieu de faire aux dits coutrevenauts des dispositions de I'article 21 du Code NapoMon et des articles 65 et suivants du d^cret du 24 mars 1852 sur la marine marchande, 313 et suivants du Code p^nal pour I'arm^e de mer. Malgre cette declaration publique de la neutralite de la Prance, malgre les prohibitions formelles qu'elle prononce conformement aux regies du droit des gens et aux dispositions speciales des lois frangaises, une con- vention a ete conclue le 15 avril 1863, entre M. Lucien Arman, con- structeur maritime &, Bordeaux, et le capitaine James Dun woody Bul- lock, Americain, agent du gouvernement des etats-confederes du sud, stipulant dans cet acte d'ordre et pour compte des mandats qu'il ne fait pas connaltre, et dent, est-il dit, il aproduit lespouvoirs en regis. Pour I'execntion du traite, M. Bullock 61it domicile chez M. Erlanger, banquier, ^ Paris. Par ce traite, M. Arman " s'engage a construire quatre bateaux 4 vapeur de quatre cent chevaux de force et disposes a recevoir un arme- ment de dix a douze canons." [241] *I1 est stipule que M. Arman construira dans ses chantiers a Bordeaux deux de ces navires, et confiera a M. Vor%iz I'exScution des deux autres navires, qui seront construifs simultanement dans les chan- .tiers de Nantes. 16 TEEAJY OP WASHINGTON — PAPERS ACCOMPANYING Pour d^guiser la destination de ces quatre uavires, il est 6crit dans I'acte qu'ils doivent 6tre consacr^s a ''etablir une communication r^guliere entre Shang-hai, Y6do, et San Francisco, passant par le d€- troit de Van Di^men, et aussi qu'ils doivent 6tre propres, si le cas se pr6sente, ^ §tre vendus, soit k Tempire chinois, spit ^ I'empire du Jappn." Enfin M. Bullock s'engage 4 faire connaitre aux constructeurs la maison de banque qui sera charg^e d'effectuer ^ Paris le paiement du prix de chacun de ces navires, flxl d, la somme de 1,800,000 francs. Le 1™ juin suivant, M. Arman,pour se conformer a I'ordonnance royale du 12 juillet 1847, adressa k M. le ministre de la marine la demande d'une autorisation de munir d'un armement de douze a quatorze canons, de 30, quatre navires a vapeur en bois et fer, en construction, detnv dans ses chantiers d, Bordeaux, un chez MM. Jollet et Babin a Nantes, un chez M. Dubigeon h Nantes. " Ces navires," est-il dit danslalettreadress^eau ministre, "sont des- tines, far un armateur Stranger, 4 faire le service des mers de Chine [242] et du Pacilique entre *la Chine, le Japon, et San Francisco. Leur armement special a en outre pour bat d'en permettre even- tuellement la vente aux gouvernements de Chine et da Japon. "Les canons seront ex6cut6s par les soins de M. Yoruz ain6, de l^antes." La lettre de M. Arman se termine en ces mots: . . . . Les constructions 6tant d4jk entreprises depuis le 15 avril dernier, je prie votre excellence de vouloir bien accorder le plus t6t possible k M. Toruz I'autorisation que je sollicite et que prescrit I'ordonnance royale du 12 juillet 1847. Sur cet expos6, et pour la destination sappos^e des quatre navires, I'autorisation fut accord^e par M. le ministre de la marine des le 6 juin, ainsi qu'elle ^tait demand^e par M. Arman. Le m6me jour, 6 juin 1863, M. Slidell, autre agent du gouvernement des 6tats-conf6d6r6s, adressait a M. Arman la lettre suivante: En consequence de I'autorisation minist^rielle que vous m'avez moutrSe, et que je juge aufSsante, le traits du 15 avril devient obligatoire. Trois jours aprfes, le 9 juin, M. Erlanger, banquier k Paris, chez qui M. Bullock avait pris domicile dans le traits da 15 avril, et qui devai garantir les paiements auj constructeurs, ^crivait k M. Arman : [243] * Je m'engage a, vous garantir les deux premiers paiements des navires que vou^ construisez pour les oonf^d^r^s, moyennant une commission, etc. Les conditions financieres proposees par M. Erlanger furent accept6es par M. Arman, qui, le m§me jour, le 9 juin, adressa k M. Voruz, k Nantes, le t^Mgramme suivant : A M. VqeTjZ, Grand Hotel, Paris : ■ J'ai 8ign6, sans modification, la lettre a Erlanger ; elle est au courrier. ARMAN. De son cote, M. Erlanger ^crivait, sous la m6me date, k Mr. Yoruz, k Nantes : Voici les lettres d'engagements, le coutrat et la copie. Comme vous habitez sous le meme toit que le capitaine Bullock, vous aurez peut-6tre I'obligeance de lui faire signer la copie du contrat. J'ai ^crit directement si M. Armau. Reoevez etc. Le lendemain, 10 juin, M. Arman adressait k M. Yoruz une lettre ainsi con9ue : Chbr Monsieuk Vorxjz : Je vous accuse reception de votre lettre chargge du 9, et du mandat de Bullock de 720,000 fr., qui 6tait inolus. Je m'empresse de vous donner d6- charge, ainsi que vous le d^sirez, des pieces que vous avez sign^es aux maius de M rr.;. Bullock pour le premier paiement des deux navires de 400 chei-aux, que je consiimis [244] pour le compte des confMer^s "simultan^ment avec ceux que vous faites oonstruire^ par MM. Jollet et Babin, et Dubigeon Je vous prie de faire en sorte d'obteuir de M. Bullock la promesse de nous rembour- COUNTER CASE OF THE UNITED STATES. 17 SBiMifiu de compte des esoomptes de garautie que nous payoas h M. Erlanger. Ee- cevez, etc. D'autre part, MM. Jollet efc Babin, et Dabigeou fils, cb.arg6s de la construction, dans lenrs chantiers k Nantes, de deux des quatre navires, ainsi qu'il est dit dans la lettre adress6e le l^"^ juin par Mr. Arman h M. le ministre de la marine, ^crivaieut, le 10 du meme mois, k M. Voruz : MoN Cher Vokuz : Apr&s avoir pris counaissanoe des conditions finanoiferes qui voUs ont 6t4 faites par la maison Erlanger, ainsi que des lettres intervenues entre vous et MM. Slidell et Bullock, nous venous vous rappeler nos conventions verbales, afin de bien j)r6ciser nos positions respeotives dans cette affaire. D'autres personnes, avec entiere connaissance de la vt^,ritabie destina- tion de ces constructions et'de ces armementsmaritimes, devaient pren- dre une part notable dans les benefices de I'bp^ration et supporter pro - portionellement les escoinptes de garantie stipules en f aveur de M. Er - 'langer. O'est pour s'entendre sur ce dernier objet que M. Henri [245] Arnous Eivi^re, n6gociant k Nantes, ^crivait d^s *le 8 juin k M. Voruz aiEe : La complication financifere snrvenue aujoiird'hui dans I'affaire dont le contrat a 6t6 sign6 le 15 avril dernier entre M. Arman, vous et le capitaiue Bullock, motive la pro- position que je viens vous soumettre. MM. Mazeliue et C*®, du Havre, 6taient cbargees de la confection des machines a vapeur pour les quatre navires k h61ice, dont les coques se oonstruisaient dans les chantierS de Bordeaux et de Nantes. Mais igno- raient-ils la veritable destination de ces batiments de guerre lorsqu'ils 6crivaient a M. Voruz aln6, le 23 juin 1863 ? Monsieur: En paraphant, il y a quelques jours, le marcM BuUo'clc, etc., nous avous otujs, vous et nons, de redresser une erreur de dimension des machines, etc. Nous vous prions de nons ^crire que ces deruiferes mesures, qui sont en construction, sent bien celles convenues entre nous. ' . Tout 6tait done parfaitement concerts entre les divers participants pour rex6cution du traite pass6 le 15 avril 1863 entre M. Arman, con- structeur fratigais, et M. le capitaine Ballock. Ce traite a 6t6 expresse- ment ratifi6 par M. Slidell, agent diplomatique des etats-conf6d6r^s, suivant sa lettre adressee a M. Arman Ip 6 juin 1863. Les autorisations minist6rielles exig6es par la loi fran§aise pqur [246] la construction et I'armement *des batiments de guerre ont ^te ac- cord^es, I'administration ayantsansdoute ^t6abus6e par lapreten- due destination qu'un amateur efraw^er devait donner k ces navires de guerre dans les mers de Chine et du Pacifique, et par la condition ^ventu- elle deles vendreaux gouvernments de Chine ou du Japon. Mais leur des- tination veritable pour le service des 6tatsbellig6rantsdu sud est parfaite- iftentconnue de tons les int6ress6s. Les constructions des vaisseaux, de , leurs machines, de leurs armements, sont en pleine activite. Les paie- ments, garantis aux constructeurs par une maison de banque puissante, sont en partie effectu6s. Une seconde operation doit avoir lieu. Le 14 juillet 1863, M. Voruz aine, ecrivant de Paris k son fils, M. Anthony, lui annonce que le capi- taine Bullock et M. Arman sont partis la veiUepour Bordeaux, ainsi que M. Erlanger, banquier, et qu'il s'agit d'un traits pour des nmnres-hlindis. En meme temps il lui dit qu'une affaire est faite avec un sieur Blakeley, fondeur anglais, pouf la fourniture de 48 pieces de canon avec 200 bau- iets par piece. "Le march^," dit-il, " est fait d'une maniere qui nous as- sure la fourniture exclusive de tout ce 'qui pourra etre execute en J. ' Le 15 juillet, le m6me M. Voruz, en rappelant k M. le ministre 1^1247.] de la marine que, par *sa lettre en date du 6 juin, il a bien voulu 2 A n 18 TREATY OF WASHINGTON — PAPERS ACCOMPANYING I'autoriser k ex^cuter, dans ses usiues a JSTantes, les canons n^ces- saires k I'armeme.nt de quatre navires, dont deux sont en construction a Bordeaux, dans les chantiers de M. Arman, et deux dans les cMnttsrs Oe Nanus, demande au ministre " la permission de visiter I'^tablissement da gouvernement k Euelle, pour avoir les ameliorations eftectu6es aans I'outillage," etc. Oette permission fut accordee le 9 aout. ., ^ . •„ ^. Une nouvelle convention est sign6e double k Bordeaux le 10 juillet 1863: EQtre M. Arman, constructeur maritime h Bordeaux, d6put| au Corps l^gisl^tif, quai "de la Moiinaie, 6, et M. James Dunwoody Bulloclj, agissact d'ordre et pour corapte de mandants dont il a produit les pouvoirsen rfegle, ghsant domicile, chez M. M. Eraiie Erlanger, rue de la Chauss^e d'Antin, 21, ^. Paris, ont 6t6 arret^s les co M. Eraiie couTentions suivantes : ^ Art. 1". M. Armau s'engage envers M. Bullock, qui Taccepte, a construire pour son compte, dans ses chigntiers de Bordeaux, deux batiments helices h vapeur, a, coque bois ef for, de 300 ohevaux de force, fl deux helices, aveo deux blockhaus hlindis, contormes au plan accept^ par M. Bullocli. , « v [248] *Art. 3. Resteront seuls h, la charge de M. Bullock les canons, les armes, les projectiles, les poudres, le combustible et enfln les salaires et les vivres de 1 €(iui- Akt. 5. Les batiments seront munis d'une machiue h, vapeur de 300 ohevaux de force, de 200 kilogrammes le cbeval, a condensation, constrnite par M. Mazeline du Havre. Art. 6. Les deux navires devrout 6tre admis et prets a faire leurs essais dans un d^lai de dix mois. ^ • » » * » • . » ' * Art. 9. Le prix de chaoun de ces navires est fix^ a la somme de deux millions de francs, qui sera pay(5e a Paris un cinqifeme coniptaut. Art. 11. M. Bullock a d6sign6 la maisou fi. Erlanger et C'% eomme ^tant cbarg^e d'eflfeotuer les paiements ik Paris et devant accepter les clauses linanciferes du present traits. Le 17 juillet, M. Voruz ain6 ecrit : Je recois aujourd'hui une lettre d'Arnons, de Bordeaux, qui me dit qu' Arman vient de signer le march6 pour deux canonniferes blind^es, de 300 chevaux de*fbrce, pour deux millions chaque. Eafln, le 12 aoiit, M. Ballock, reste charg^, par Particle 3 du trait6 da 16 juillet ci-dessus, des canons, des armes, des projectiles, etc., . [249] pour les deux canonnieres blind^es, adressait k M. Yoruz *la let- tre suivante : Liverpool, 12 aout 1863. J'ai refu, M, Toruz, votre lettre, du 4 courant, avec les indications de prix du canon de 30, et de ses aooessoires. II ne m'est pas possible de dire si je vous donnerai un oi-dre positif et direct pour de semblables canons avant' d'avoir appris idu oapitaine Blakeley comment I'affaire de son propre module de canon ceroid ^ 6t(5 comprise. Je serais cependant charm6 de traitor une affaire avec vous, si nous pouvons nous accorder siir les conditions. Nous discnterons tout cela quand j'irai S, Nantes. 11 est dans mes intentions de confier mes affaires &. aussi pen de mains que possible, et j'espfere que nous tomberons d'accord sur tons les points essentiels, de telle sorte que nos relatione pourront prendre ime plus grande extension rnenie en eas de paix. Nolve gouvernement aura iesoin, sans doute, pendant un certain temps, de s'adresser en France pour la construction de ses vaisseaux et machines, et, pour ce qui me concerne personnellement, jiB Serais euchantS que les rapports que j'ai eus avec vous vous amenassent pour I'avenir h, des commandes plus considerables encore. Veuillez, s'il vous plait, m'in- former si les corvettes avancent et me dire quand les seconds paiements eeront dus. Je vous 6crirai une semaine avant mon 3,rriv€e ^ Nantes. BULLOCK. 1 250] *Les termes de cette lettre s'appliquent 6videmment au projet d'armement des' deux cauonni^res blind^es, dont la construction a 6t6 I'objet du trait6 pass6 h Bordeaux, le 16 juillet, entre MM. Ar- man'et Bullock. Oe dernier, capitaine aa service de la confederation des 6tats du sud, a agi d'ordre et pour compte de son gouvernement. II n'est COUNTER CA'BE OF THE UNITED STATES. lO* pas possible fo vessel of war or belligerent privateer will be allowed to stay more than twenty-four hours in a port of the empire of the French col- onies, or in the adjacent waters, except in the case of a forced \putting in on account of bad weather, of injuries, or of e^austion of provisions, necessary to the safety of the voyage. 2d. In no case can a belligerent make use of a French port for a pur- pose of war, or for there supplying himself with arms or muni- [315] tions of war, or for there *executing, under pretest of repairs, works whose object is to increase his military x)ower. 3d. There can only be furnished to a vessel of war or belligerent pri- vateer the provisions, stores, and means of repair necessary for the sub- sistence of her crew and for the safety of her voyage. 4th. No vessel of war or belligerent privateer allowed to take in pro- visions or to make repairs iu a French port can prolong her stay there beyond tweuty-fcur hours after her supplies shall have been shipped and her repairs finished, except in the case hereinafter provided for. 5th. When vessels of war, privateers, or merchant- vessels of the two belligerent parties are found together in a French port, there shall be an interval of not less than twenty-four hours between the departure of any vessel (of one of the belligerents, and the subsequent departure) 9f any vessel of war or privateer of the other belligerent. This delay shall be extended, in case of need, by order of the mari- time authority, as long as may be necessary. You will take care to make known the foregoing regulations to every vessel of either of the belligerents which may come into the ports, road- steads, or waters subject to your command. Accept, gentlemen, the assurance of my very distinguished considera- tion. COUNT P. DE CHASSELODP LAIJBAT, Minister Secretary of State, of Marine, and of Colonies. Inserted in the official bulletin, 1864. [316] *Mr. Dayton, United States minister, to Mr. Seward, Secretary of State. [Extract.] Paris, February 19, 1864. Sib : I yesterday communicated to Mr. Drouyn de Lhuys the contents of your dispatch No. 468, and I did this the more readily as, in its main features, it was a reiteration from you of views that I had individually already expressed to him. I read to him that part of your dispatch iu which you state that the decision of the French government in respect to the Eappahannock, cooperating with other causes, will be a trial to the friendship of our country toward France, for which, after the pro- tests we have madcj not our Government, but "the Emperor, will be re- sponsible." He said, iu reply, that we must deal with things as they 44 TREATY OP WASHINGTON PAPERS ACCOMPANYING were. That France having actnowleclged theSouth as belligerents, he could do nothing less than treat them as such. That, keeping that po- sition in view, the Florida and Georgia had been received in their ports. That the Florida had been repaired, though little had been done to the Georgia, and nothing had been done to either of these vessels except what was essential to their " navigability.''^ That their fighting powers had not been improved, nor had a French seaman been permitted to embark on either of them. That in respect to these vessels, therefore, he thought they had kept within the limits of clear rules of international law. That in respect to the Rappahannock, she had not yet been per- [31 7J mitted to leave port, nor would she be T)ermitted to leave *until his government, by a most rigorous and careful examination, had satis- fied itself that no rule of war had been violated. She had been permitted to repair as a vessel of commerce only, and if we anticipated that she was to be converted into a ship of war by guns from England, it was against England, and not France, we should complain ; but if the fact turned out as I insisted, that she was no vessel of commerce, but a ship of war, then he admitted that if she came into a French port, not by stress of weather, but voluntarily to finish her equipment, and she were per- mitted to leave, it would be a breach of the proclamation of neutrality published by the Emperor : but the question of fact, he said, was yet iu the course of investigation. I repeated to him the evidence on this question, (a summary of which will be found, by the way^ iu the first dispatch I sent to him on this subject December 4 last.) He seemed to consider, however, that I presented the subject in some new lights, and said he would again refer the matter to the minister of marine. The line of distinction between what they might properly do, and what they might not, was, he said, in his mind quite clear. If a war-vessel came into their ports from stress of weather they were bound to let hej- repair damages, adding nothing, except such repairs, to her fighting qualities; but if such a vessel came into port in an unfinished condition they could not rightfully permit her. to finish her equipment, for that wonld be to shape a harmless log or mass of timber into a fighting-ship. I told him that he and I did not then diifer in this case so much about the law as about the fact, and I yet hoped that on the further investigation, which he promised, this vessel might be stopped. 1 am, sir, your obedient servant, WM. L. DAYTOIif. '■ Hon. Wm. H. Sewakd, Secretary of State. [318] *ilf. Gosselin au Lieutenant Cainphell. Calais, le ifSvrier 1864. Monsieur : Je viens de recevoir de son excellence le ministre de la marine et des colonies une d6p6che contenant des ordres precis formels en ce qui eoncerne votre batiment ; et la notification que je dois vons en faire m'est, veuillez n'en pas douter,- tres p6nible ; pourtant, la communi- cation que j'ai eu I'honneur de vous faire le 11 du mois dernier, et a la suite de laquelle vous m'avez d^clar^ pouvoir etre en 6tat completde prendre lamer a environ une semaine de cettedate, tout en vousfaisaut pressentir la possibilite des mesures surveuues aujourd' hui, a dii vous l)reparer a y faire face. COUNTEE CASE OF THE UNITED STATES. 45 J'ai done le regret, monsieur, de vous informer que le goaveruement desa Majesty FEmpereur a d6eid6 que j'intimerai " I'ordre au Kappahan- iiock de quitter le port de Calais a la inar6e qui suivra la reception de cette lettre," et que, faute par vous d'obtemp6rer a cetteiujoncdon, il ne vousserait plus pertnis de quitter ce port qu'fllaflu des liostilit^s [319] entre les Etats-Unis et *les confed6r6s. Le long s^jour de votre batiinent ^ Calais, et surtout le temps 6coul6 depnis I'avis pr6cite, me font esp6rer, monsieur, qu'il vous sera possible d'ici minuit de hater vos derniers pr6paratifs, de telle sorte que la decision de laquelle je viens d'avoir I'honneur de vous faire part re- 901 ve son execution. J'ajouterai, monsieur, malgr6 la nature ^pineuse de mes relations offi- cielles avec vous, je d6sire vivement que le bref delai qui vous est ac- oord6 soitpourtautsufQsant. Ai-je besoin d'insiater, monsieur, au moment Je votre depart sur ce que les rapports et les r6ponses que j'ai en k adresser a regard de votre batiment ont 6t6 constamment conformes a la vMt6, telle que mes investigations personnelles et impartiales me I'ont fait trouver, et que mes explications ont 6te toujours loyales, siu- c6res et completes ? Je vous prie de vouloir bien, en raison de son importance, m'accuser reception de la pr^sente. ^ Veuillez recevoir, monsieur, I'expression de ma consideration tres- distiugu6. Le commissaire de I'inscriptiou maritime: GOSSELIN. A Monsieur Campbell, Lieutenant Commandant le Vapeur Eappahannoch. [320] *M. Gosselin au Lieutenant Campbell. Calais, le 10 fevHer 18G4. MoNSiEUE : J'ai I'tionneur de vous accuser reception de la lettre que vous m'avez adress^e hier. J'ai 6galement I'honiieur de vous informer que, par suite k la lettre que vous m'avez adressee, dans laquelle vous me faisiez connaitre que vous seriez pret a partir aussitdt I'arriv^e de votre charbon, et que j'ai transmise A, son excellence, le gouvernement de sa Majesty I'Empereur vient de me prescrire de vous maintenir dans le bassiu jusqu'a nouvel ordre, et que vous ne pouvez sortir du port que lorsque j'aurai regu de noavelles instructions a ce sujet. Les mfimes instructions ont it6 don- n6es A M. le commandant du Galilee. Agr^ez, monsieur, I'assurance de ma consideration distingu^e. Le commissaire de I'inscriptiou : GOSSELIN. Monsieur Campbell, First Lieutenant, Commandant le RappaliannocTc. [321] *Mr. Gosselin to Lieutenant Campbell^ , .- | [Translation.] Calais, February 4, 1864. Sie: I have just received a dispatch from his excellency the minister of marine and the colonies, containing sumujary and formal orders rela- 46 TREATY OF WASHINGTON PAPERS ACCOMPANYING tive to your vessel, and the iiotificfition I am obliged to make you in this respect, do not doubt, is very painful to ine; nevertheless, the com- manicatiou which I had the honor to send you on the 11th of last month, where I presented to you the possibility of the very measures which are now taken, and in consequence of which you declared to me that you ■would be in condition to go to sea in about a week from that date, must have prepared you to encounter them. I regret, sir, to inform you that the government of His Majesty the Enipeior has decided that I shall order the " Eappahannock to leave the port of Calais at the next high tide after the receipt of this letter;" aud if you fail to comply with this command you will not be permitted to leave this port until'the end of hostilities between the United States and the confederates. The long stay of your vessel at Calais, and above all the time which has elapsed since the above-mentioned notice, makes me hope, sir, [322] that from now until *midnight it will be possible for you so to hasten your last preparations that the decision with which I have just had the honor to make you acquainted shall be executed. I have to add, sir, that in spite of my delicate official relations with you, I desire extremely that the brief delay accorded to you should be suffteient. Is it necessary for me to repeat, sis, at the moment of your departure, that the reports and answers which I have had to make rela- tive to your vessel have always been truthfully in accordance with, my personal and impartial investigations, and that my explanations have always been loyal, sincere, and complete? I have to request you to ac- knowledge the receipt of this letter, on account of its importance. Accept, sir, the expression of my very distinguished consideration. Le commissaire de I'inscription maritime, GOSSBLm. M. Campbell, Lieutenant, Commanding the /Steamer Rappahannock. Mr. Gosselin to Lieutenant Campbell, r Translation.] Calais, February 10, 1864. Sir : I have the honor to acknowledge the receipt of your letter of yesterday. [323] I have also the honor to inform you that in consequence *of the letter addressed by you to me, in which you tell me that you shall be ready to depart upon the arrival of your coal, and which letter I trans- mitted to his excellency, the government of His Majesty the Emperor has just ordered me to detain you within the basin until further orders, and that you can only leave this port when I shall receive new orders to that effect. The same orders have been given to the commander of the Galilee. Accept, sir, the assurance of my distinguished consideration. Le com^missaire de I'inscription, GOSSELIlJr. M. Campbell, First Lieutenant, Commanding the Rappahannoolc. COUNTER CASE OP THE UNITED STATES. 47 , Mr. Dayton, United States minister, toMr. Seward, Secretary of Slate. [Extract.] <: ■ PAias, March 25, 1864. ' Sib :* ** #* #»## Mj' notice to the French government that they would be held respon- sible for all damages done by the Rappahannock, in case she should be permitted to go to sea, was in an.ticipation of that event, and in the hope that the question, being thus plainly presented in advance, they might prevent the wrong by forbidding her departure. It has, perhaps, some effect, for she is yet shut up in her basin, with strict orders not to permit her to depart without iirst obtaining the direct authority of this government. [324] The officers of the ship, Mr. Drouyn de Lhuys informs *me, " grumble" very much at their enforced detention, but he has in- formed them that Prance will not permit her ports to be used for the equipment of vessels of war for the confederates. I have just received notice from our consular agent at Calais that Captain Campbell, as well as the first lieutenant of the Rappahannock, have left here and gone back to England, with a view, as they said, to buy and equip another ship there ; and that a man named Ponteroy (his baggage is marked "Colonel Fonteroy") has taken command of the Rappahannock. • Our consular agent thinks this is preparatory to the vessel's leaving ; but it is quite certain that she has had no permit to leave, and had, a day or two since on boarding, neither arms nor crew for any hostile purpose, or indeed to do anything more than navigate her from one port to a neighboring port. ***** I am, sir, your obedient servant, W. L. DAYTON". Hon. WlLLIA-M H. Sewaed, Secretary of Staie, &c., &c., &c. Mr. Seward, Secretary of State, to Mr. Dayton, United States minister. [Extract.] Depaetment oe State, Washington, May 20, 1864. [325] SiE : I have the honor to acknowledge the receipt *of your dis- patch of the 2d of May, No. 460. You will please express to Mr. Drouyn de Lhuys a high satisfaction on the part of this Government with the information he has given you, that the Rappahannock will not be allowed to enter the piratical service of the enemies of the United States. * * * * « * I am, sir, your obedient servant, WILLIAM H. SEWARD. William L. Dayton, Esq., c&c. Mr. Dayton, United States minister, to Mr. Seward, Secretary of State. Pabis, Jwne 10, 1864. Sib : Looking over my dispatch of the 8th instant, No. 484, I find that I have neglected to say that, in the conference there reported, Mr. Drouyn de Lhuys informed me that no change had been made in 48 TREATY OF WASHINGTON PAPERS ACCOMPANYINa the condition of things connected with the Eappahannock, and that no orders had issued, or were about being issued, for its discharge. He said that he had as yet received no answer from the committee otjuriSr consults, who had been consulted by him ; although, as the senate had now adjourned, and Mr. Troplong, the president, who is chairman of this committee, would be at leisure, he might expect an answer at no distant day. . I am, sir, your obedient servant, -„r^^^„ ' ' WM. L. DAYTON. Hon. William H. Seward, Secretary of State. [326] *The minister of the marine and the colonies to Monsieur the vice- admiral, maritime prefect at Cherbourg. [Trauslation.] Cabinet op the Minister, Paris, June 15, 1864 — noou. We cannot permit the Alabama to enter into one of our basins of the arsenal, that not being indispensable to place it in a state to go again to sea. This vessel can addressitselfto commerce (commercial accommodations) for the urgent repairs it has need of to enable it to go out ; but the principles of neutrality, recalled in my circular of the 5tli of February, do not per- mit us to give to one of the belligerents the means to augment its forces, and in some sort to rebuild itself; in fine, it is not proper that one of the belligerents take, without ceasing, our ports, and especially our arsenals, as a base of their operations, and, so to say, as one of their own proper ports. You will observe to the captain of the Alabama that he has not been forced to enter into Cherbourg by any accidents of the sea, and that he could altogether as well have touched at the ports of Spain or Portugal, of England, of Belgium, and of Holland. As to the prisoners made by the Alabama, and who have been placed ashore, they are free from the time they have touched our soil ; [327] but they ought *uot to be delivered up to the Kearsarge, which is a Federal ship of war. This would be for the Kearsarge au augmentation of military force, and we can no more permit this for one of the belligerents than for the other. Mr. Bigelotv, United States minister, to Mr. Seward, Secretary of State. [Extract.] Legation op the United States, Paris, March /6, 1S65. Sir : I have to acknowledge the receipt of dispatches ISTos. 39 to 42, inclusive. I received yesterday from Mr. Dudley, our consul at Liverpool, a letter informing me that that portion of the crew of the confederate cruiser COUNTER CASE OP THE UNITED STATES. 49 Florida which was liberated at Bostqa was paid off at Liverpool on the 20th of February last, and to each was given leave of absence till the 10th instant, when they were to report for duty oa board the Ejappahannock, at Calais. , '. I itamediately wrote (inclosure Xo., 1) to Mr. Drouyn de Lhuys, and at an injterview which I had with his excellency in the afternoon placed it in his hands. His excellency read it, expressed dissatisfaction with the alleged conduct of the vessel, and said it should be looked into at once. [328] I remarked that I did not suppose I could say *anything that. would make the duty of the government in reference to this abuse pf the hospitality of Prance more clear, and then I went on to other business. In the course of my conversation upon other topics, I had occasion to refer again to this vessel, as you will see in dispatch 'So. 42, when he said, " I shall send a copy of your letter to the minister of marine at once," intimating at the same time his decided disapproval of the use made of the Eappahannock, and his determination to have it stopped. * * * I Tiave written to our consular ageut at Calais to keep me fully advised of everything that may occur on board the Eappahannock, especially between this and the 10th instant. I am, sir, with great respect, your very obedient servant, JOHN BIGELOW. Hon. William H. Seward, Secretary of State, t&c, tfcc, &c. Mr. John Slidell to Mr. Drouyn de Lhuys, minister of foreign affairs. Paris, June 9, 1864. [329] *Sir: On the 17th February last the Confederate States war- steamer Eappahannock having completed her repairs at the port of Calais and taken on board a supply of coal, her commander notified the authorities of the port of his wish to proceed to sea, when he was informed that instructions had been given by his excellency the minister of marine not to permit the departure of the vessel. On the 26th Feb- ruary, the undersigned had the honor to address your excellency on the , subject of this detention, and to demonstrate conclusively, as he thought, that no just cause existed for the detention of the Eappahannock ; no answer having been made to this letter, the undersigned, on the 14th March, again addressed your excellency, and requested to be informed of the reasons of the detention. This letter also remaining unanswered, the undersigned advised the commander of the Eappahannock to give notice of his intention to strike his flag, withdraw his crew, and abandon his vessel to the proper authorities of the port. This step was accord- ingly taken by the commander, who, on the 16th, informed in writing the commissary of marine at Calais of his intention to abandon his vessel on the 15th of May. In the mean while the undersigned was verbally informed that the question of the Eappahannock had been re- ferred for examination and report, by your excellency, to a commission of jurisconsults, and having reason to expect a prompt and definite solu- tion of the question, advised the commander of the vessel not to carry out the intended abandonment. ■ More than month has now elapsed since the refereuce to the com- 4 A — ti 50 TREATY OF WASHINGTON PAPERS ACCOMPANYING [330] mission of jurisconsults, and the prospect of a definite *solution of the question seems to be as remote as ever. The undersigned considering a longer acquiescence in the detention of the Rappahannock, without even the allegation of a cause for her detention, incompatible -jvith the respect due to the flag of the government that he has the honor to represent, intends to renew the advice heretofore given to her com- mander to strike his flag and abandon his vessel. He ventures to ex- press the hope that your excellency will favor him with a reply to this letter, in order that he may be able to communicate to his government the reasons which have induced your excellency to pursue a course so little in accordance, not only with the good will towards the Confede- rate States which was supposed to animate the government of the Emperor, but, as the undersigned thinks, in opposition to its proclaimed neutrality. The undersigned prays your excellency to receive the as- surance of the great respect with which he has the honor to be your ex- cellency's most obedient servant, JOHN SLIDELL. His Excellency Mr. Druyn de Lhuys, Minister of Foreign Affairs. Mr. Benjamin to Mr. John Slidell. [Extract.] Department op State, Richmond, June 23, 1864. Sir: I can scarcely trust myself with the expression of the indigna- tion felt by the president at the evasions and injustice of the French government in relation to the Eappahannock. He is of opinion that the delay in the action finally taken by you on the subject went [331] *to the extreme verge of propriety, and is gratified to find that the decisive step was adopted of striking her flag and leaving her to the responsibility of the French government. The speech of Mr. Eouher on the 12th ultimo in the French chamber, and the circular letter of Mr. Drouyn de Lhuys of 4th ultimo, as given in that speech, have just reached us in the Index of 19th May, and may probably be regarded as correctly translated by Mr. Holze. They indicate so complete an " extente" between the cabinets of Washington and Paris, that we should be blind indeed if we failed to attach to these incidents their true sig- nificance. I am, very respectfully, your obedient servant, J. P. BENJAMIN, /Secretary of State. Hon. John Seidell, «&c., Paris. [332] *Mr. John Slidell to, Mr. J. P. Benjamin. [Extract.] Paris, June 30, 1864. Sir :*■*#* I said * * * * that I had asked an interview for the purpose of knowing distinctly what was to be done with the Eappahannock ; that she had been detained, without cause .assigned, for more than four months ; and that I could not obtain a written response to my various COUNTER CASE OF THE UNITED STATES. 51 communications on tli at. subject. I hoped now to have a verbal one. He said that he had not replied to my communications, because he was not prepared to give a conclusive answer; that he had written the day previous to the president of the senate asking for an early report, and so soon as that should be . received he would decide what should be done, and would inform me of his decision. * # # I have obtained, from a confidential source, a copy of the "dispositif" of the report of the consultative committee In the case of the Eappa- hannock 5 it runs thus : Le onmit^ est d'avis qne o'est seulement sous la condition de reduire I'effectif de • ^^f.l'f'P^S® '-^^ nombre des homines qui ^taient sur le uavire an jour de la re- [333] l^olie, et aprfes I'aooomplissement de cette condition que le gouvernement de 1 Einperep devra lever Pinterdiction de prendre la mer qui a gt(5 prononc€e ■ contre le navire conf^diSr^ le Kappahannock. I annex copy of a letter addressed by me to the Duke de Persigny on the subject of the Eappahannock, written at his suggestion, that he might lay it before the Emperor, which he has done. Considering it of the greatest importance that we should continue to harass and destroy the commerce of the enemy, I have advised Captain Bullock to use every exertion to put to sea at as early a date as possible several cruisers to supply the place of the Alabama, and, as we cannot rely upon having vessels expressly constructed for the purpose, to make use of the fittest instruments that he can command. In this I had but re- commended a purpose that he had anticipated, and which will be carried out, and to which Commodore Barron gives his hearty concurrence. I have the honor to remain, with great respect, your obedient servant, JOHN SLIDBLL. Hon. J. P. Benjamin, Secretary of State. Mr. John Slidell to the Duke de Persigny. [Extract.! Paris, 19 Bue de Marignan, June 17, 1864. [334] *My Dear Duke de Persigny : To whom but you, the only decided and consistent friend of the confederacy whom it has been my fortune to meet in France, can I apply for advice and assistance under the very disagreeable and embarrassing circumstances in which I find myself ? There is, however, another grievance, comparatively of very minor importance in a material point of view, but of the greatest gravity, inas- much as it trenches the honor of the confederate flag, for the removal of which I invoke your good offices. The confederate steamer Eappahannock put into the port of Calais to repair damages which had occurred at sea ; she was hospitably received, and completed her repairs with the approbation and under the surveil- lance of the, commissary of marine, acting under the instructions of the minister of marine. Her commandant desiring to proceed to 'sea, applied, on the 17th Feb- ruary last, for the necessary permissions, which was denied. The ship is still detained, and up to this moment every explanation of the cause of her detention has been refused. In the month of April the 52 TREATY OF WASHINGTON — ^PAPERS ACCOMPANYING question of her detention was referred by the minister of foreign affairs to the " comite consultatif du contentien" for' examination and report. That committee, provided by the president of the senate and composed of distinguished jurisconsults and diplomatists, has, as I am in- [335] formed within a few days, *decided unanimously that there was no sufficient cause for the detention of the Eappahannock, and has so reported. I have good reason to believe that the report would have been made much sooner had it not been intimated to Mr. Troplong that it would be well to defer it until the chambers should have ad- journed. I cannot permit myself to believe that in this matter M. Drouyn de Lhuys is acting in strict accordance with the wishes of the Emperot; sure I am, at least, that the Emperor cannot desire that insult should be added ta injury, as it unquestionably is, when the minister, although re- peatedly asked, will not even condescend to give a reason of any sort for the course he thinks proper to pursue ; a course which is in direct opposition to the neutrality which he professes his resolution to main- tain. Am I expecting too much, my dear Duke de Persigny, when I express the hope that your great and well-merited influence will be exercised to obtain, if not redress for what I consider a flagrant wrong, at least some explanation, which will relieve me from the humiliation of finding my remonstrances systematically unnoticed by the minister of fdreiga affairs. Believe me, most faithfully and respectfully, your friend and servant, JOHN SLIDBLL. {336J *Mr. John Slidell to Mr. J. P. Benjamin. [Extract.] Paris, August 8, 1865. Sir : Commodore Barron and Captain Bullock have fully advised the secretary of the navy of the reasons which induced Captain Fountleroy not to avail himself of the tardy and ungracious permission for the sail- ing of the Eappahannock. They may be summed up in the inadequacy of the number of men which he was allowed to retain, the impossibility of shipping and dispatching from England or elsewhere the remainder of the crew, the presence of four of the enemy's cruisers in the neigh- borhood of Calais, the inability of the ship to carry more than five days' full supply of coal, and her general unfitness for the service in which she was to be employed. I have the honor to be, with great respect, your most obedient ser- vant, JOHN SLIDELL. Hon. J. P. Benjamin, Secretary of State. [339] * 1 1.— I T A L Y . Codice j^enale del regno d^Italia. 174. Chiunque con atti ostili non-approvati dal governo del re avr^ esposto lo stato ad una dichiurazioue di guerra, sar^ punito colla relega- COUNTER CASE OF THE UNITED STATES. 53 zione ; se la guerra ne fosse segnita, la ipena sard, del lavori forzati a tempo. 175. Chiunque con atti non approvati dal governo del re avrk esposto regnicoli a voffrire rappresaglie, sara punito coUa relegazione estensible ad, anni died o col carcere ; salve le pene inaggiori in cui fosse incorso per gliatti conimessi. Si il colpevole e un punzionario publico soggiacera alia pena della relegazione. [Translation.] Penal statute of the Mnc/dom of Italy. 174. If any person whosoever shall, by acts not authorized by the government of the King, have exposed the state to a declaration [340J of war, he ^hall *be punished with banishment; if the war has been actually carried out, he shall be punished with temporary penal servitude. 175. If any person whosoever shall, by acts not approved of by the government of the King, have exposed the subjects of the kingdom to reprisals, he shall be punished with banishment even for a term of ten years, or with imprisonment, without prejudice to any further penalty to which Tie may be liable on account of the acts he has committed. If the offender be a public functionary, he shall be punished with ban- ishment. These provisions are similar to those of the Code P6nal of France on the same subject, and to those of the Netherlands, Belgium, Bavaria, Spain, Portugal, and other countries of Europe, as collected in the work entitled " Le gularioni comparatodel codice penale Italiano," by Mar- teno Speciolo Castelleri, p. 284. In all these codes, therefore, the com- mentaries, cases, and opinions, having reference to Articles 84 and 85 of the Code P6nal of France, apply. Special commentary thereon is, nevertheless, subjoined. — (Commeutario del codice penale, T. Ferrarotti, Vol. I, pp. 261, 262.) ^[341J * Codice degli ex stati Extensi — JLrtl69, w. 6, Veggasene il testo sotto I'art. 169 precedente. Occorendo decidere quali atti abbiano a ritenersi siccome capaci ad esporre i regnicoli a subire rappresaglie? Consultinsi Carnot, Comm. sull' art. 85, n. 2. — Haus, Osseri, Sul. prog. Belg., t. 11, p. 23. — DaMos, t. JXXVII, p. T.^Bauter, Tratt. di drit. crim., § 287. — Ghauveau et Selie, 1. 1, n. 1062, ediz. Brux. II fatto d'aver tentato di allontanare militari nazionali dalle loro ban- diere per farli passare in paese straniaro, constituisce il crimine di reclu- tamento all' estero, ancorche lo stato non abbia nemici all' estero nfe ribelli all' interno, e sia in pace con tutte le altre protenze. Cass. Franc, 2 april, 1831.— Sir., t. XXXI, parte 1, p. 377—13 febbraio, 1823.— Morin e Satire, 1. c, — Carnot, art. 92, n. 6. Sulla questione se lo scopo di questo articulo, sia di punire ogni arma- mento illegale, ovvero soltanto e piii verosimilmente la leva illegittima di truppe annate, I'armamento illegale'di soldate destinati nelP inten- zione dell' a gente ad attacare i poteri dello stato ? — Vedi nel primo senso Cass, franc. 13 febbraio, 1823, riferitada Carnot sulV art. 92, n. 6. — Contra nel secondo senso e piti rettamente, secondo noi : Ghauveau [342] *et HeliS, t. 1, n. 1179, ed. Brux. Quindi sembra inquesto ultimo 54 TREATY OF WASHINGTON PAPERS ACCOMPANYING senso iiecessario che logetto delF arruolamento sia determinato nelle quistioni sottoposte ai guirate. .,,,-, -i. a 4.4. ' Carnot suU' art. 92, n. le ; Sebire e Carteret, Encicl. del dnt.— Atten- tate politici, 1. 11, p. 217, opinano che la^avole-senza Vautonzzazione del governo del re— espresse in questo articulo, non debonnomtendersi in une senso troppo assoluto. Ohe percio I'argente, il quale sata proceduto ad una leva di nomini senza I'autorizzazioue del potee, sava non dimeno scusabile se avra agito per ordine del suoi supferiori nell' ordine gera- chico, e tale arruolamento sia stato un atto della sue funzioni. Cio posto, 3Iorin, dfe.— Usurpazione di autorita— sogguinge che la questione di sapere se tale ordine od autorizzazione siano stati legittimamente ossia regolarmente dati, debb' essere posta, spettando all' accusato di fornirne la prova ed ai guirati di apprezzarla. [3431 *rTranslation.] Statiite of the anckyit States of Uste, Art. 169, Ifo. 6.— See the text under Art. 169, above mentioned. The question being to decide what acts are to be considered as being • liable to expose the subiects of the kingdom to reprisals. Consult Carnot, Comment, on art. 85, No. 2.—Eaus, Observ. on Belgian Proj., vol ii, p. 23.—Da.llozo, vol. xxvii, p. 1.— Banter, Treatise on Criminal Eight, sec. 267.— Chauveau and Heli6, vol. i, No. 1062, Edit, of Brus- sels. The fact of having attempted to entice away national soldiers and to take them away to a foreign country, constitutes the crime of recruiting abroad, though the State be not at war with any foreign nation, not contending with any rebels in the country, and be at peace with all other powers. (French Court of Cass., April 2, 1831— Sir, vol. xxxi, part 1, p. 377, February 13, 1823.— Moriu and Sebire, 1. c,— Carnot, art. 92, No. 6.) On the question as to the bearing of said article, whether it be in- tended to punish all unlawful armament, or only and more likely the illegitimate levying of troops and unlawful armament of soldiers in- tended to attack the authority of the State, see. in the iirst sense^ French Court of Cassation, February 13, 1823, quoted by Caznot, • [344] *on art. 92, No. 6 ; against the second sense, and more- rightly, as it appears to us, Chauveau and Heli6, vol. 1, No. 1179. Brass, ed. In this latter sense, it seems necessary that the object of the ■enlistment be determined in the questions presented to the considera- tion of the jury. Carnot on art. 92, No. 1, and Sebire and Carteret Encyclopedia of Law, Political Offenses, vol. ii, p. 217, deem that the words " without ttie authorization of the government of the l?ing" in this article, are not to ■ be understood in a too absolute sense; therefore, that the agent wlio shall have proceeded to levy men without the authorization of the gov- ernment shall nevertheless be excusable if he shall have acted in con- formance with the directions of his hierarchical superiors, and if such enlistment shall have been part of his ordinary functions. On these premises, Morin, Usurpation of Authority, contends more- over that the question, whether such directions or such authorization be legitimately or regularly given, is to be presented to the consid- eration of the jury, and that the defendant is expected to give the proof thereof, and the jury is to decide on the value of said proof. COUNTER CASE OF THE UNITED STATES. 55 [347] , *1II. — POETUGAL. No. 1. Code and Commeatary. No. 2. Efforts to Preserve the Neutrality of the Azores and Madeira. No. 3. Limitations of Asylum to the Florida at Fanchal. No. 4. Case of the " Stonewall." [348J *5rO. l.^CODE AND COMMENTARY. Theoria do direito penal, applicada as codigo penal portiiguez, comparado com codigo do Brazil, leis patriae, codigos e leis criminaes dos povos antigos e modernos: Offer ecida a 8. M. I. 0. SB. D. Pedro II. — Imperador no Brazil per F. A. F. Da Silva Ferrao. Vol. IV. {Lisboa, 1857,) pp. 181, 231. AetiGtO 148". — Todo o poftuguez que, por quaeS'quer actos nao auctorisados pelo governo, expozer o estado a uma declaraQuo de guerra ou expozer osportuguezes a represalias du parte de uma poten- cia estrangeira, sera condemnado, se a guerra ou as represalias se seguirem, a degredo temporario ; e, se a guerra ou as represalias se nao seguirem, a prisao correctional desde urn a tres annos. Salva a pena maior em que possa ter incorrido seo facto praticado for crime punido pela lei com pena mais grave. (Art. 29°, N" 4" e ref.; art. 30° N°. 4° e ref. ; Cart., Const., art. 9°, § 2". [349] *Concordam com a litra e disposi^ao" d'este art. o cod. Pr., art. 84 6 85, Hesp., art 148, do Brazil, art. 73, das Duas Sicillas, art. 117 e 118, da Sardenha, art. 179 e 180, e o nosso de 1837, art. 113. Com a differeuQa de que o Cod. Pr. e os das Duas Sicilias e Sardenha, que imitaram, distintinguiram a incrimina§ao para tratar d'ella sepa- radamente, quando resultasse compromettitnento da i)az, e quando so- mente a provocaQao a represalias. O Cod. do Brazil, o nosso de 1837 e o Hesp.fizeram de ambos os casos uma so incriminagao. Este nosso art. assim o praticou tambem. Mas sem rasao sufficiente, e consideramos preferivel a apreciagao feita pelo Cod. Pr. e sens imitadores. Se e. necessaria, nos termos d'este art., para constituir a criminalidade, a eventualidade do mal resultante de um facto material, a gravidade da pena deve ser medida sobrea gravi- dade das cousequencias d'esse facto. Ora se as cousequencias sao maiores no caso da eventualidade da guerra que no das represalias, quando nao sejam geraes e continuas a in- criminagao devia dividir-se para dar logar a discriminar a pena, attenn- ando-se na segunda hypothese. [350] *Outra differenga uotavel existe no Cod. Pr., art. 84, quanto ao facto material. Nao basta que esse facto nao seja auctorisado pelo governo, 6 i^reciso tambem queiseja hostil de sua natureza ^'par des actions hostiles!" Os Cod. da Sardenha e das Duas Sicilias conservaram para o caso a mesma expressao, e o nltirao Ihe acrescentou a hypothese de o facto ser tal que a lei o qualificasse crime "^ar quelque crime oupar des actes hos- tiles.-' \ Assim a lei, quando se tratasse de avaliar se ofacto era ou nao hostil nao deflnia quaes eram os que deviam ou nao tomar esse caracter, mas ficava entao ao arbitrio dosjuizes o pronunciar a tal respeito, absolvendo OS r^ussemprequesetmtasse de aogoes illicitas so pelo fundamento nega- tivo de nao ser o facto auctorisado pelo governo, fundamento in- admissivel por iuconstitucional ; porque a auctorisagao do governo s6 6 56 TREATY OF WASHINGTON EAPEES ACCOMPANYING necessaria quando se exige nao vagamente, mas para certos e determi- nados actos, e a lei tolera, permitte, tudo quanto nao prohibe. O Cod. Hesp., nao conservou a expressao " hostis'^ do Cod. Fr. mas corrigiu a do mesmo Cod., pondo em logar da expressao "wore approuvSs par le gouvernement " a de " no autorizados competentemente," [351j eassim nao *requer anctorisagao do gorerno quando o facto se achar auctorisado pela lei, que dispensa toda e qualquer outra" auctorisagao, e para o caso dispensava o emprego da expressao " /losiw'^ assim como abrangia as duas id6as do Cod. das iDuas Sicilias " crimes ou TiostisP O Cod. do Brazil ainda 6 mais explicito que todos estes Cod., como se ve das palavras que julgamos dignas de aqui transcrever na sua integra : " Commetter sem ordera ou auctorisa^ao do governo hostilidades, contra os suMitos de outra nafdo, de maneira que se comprometta a paz ou provoquem as represalias." Assim se fica entendendo que, se o facto em si for tal que segundo o direito internacional nao podesse dar justo motiyo de guerra, uunca, com quanto nao auctorisado pelo governo e mesmo quando a eveutuali- dade da guerra se seguisse, poderia -ser repuitado crime. Similhaute facto nao 6 entao motivo, mas mero prextexto. Cabe nos limites da possibilidade moral eyitar factos de que possani resultar justos motivos de guerra, reconhecidos geralmente por taes ^ nao 6 dado por6m ^ prudencia huinana prevenir.at^ os pretextos. [352] ' *A incriminagao, tal como se acha feitan'esteart., naoseguiu estes modelos. Alem de nao distinguier factos de diversa gravidade, caindo a esse respeito no defeito do Cod. Hesp., do Brazil e do nosso de 1837, compre- hendendo " quasquer actos," abriu a porta a processos, cuja crimina- lidade nao tem nem pode ter verdade moral. Por este m.odo e debaixo d'estes dois j)ontos de vista, 6 art. 6 mais defeituoso que os do Brazil, Hespanha e de 1837, e nao adoptou d'estes o que tinham de bom, nao imitando, precisando ou ampliaudo o que o Fr. e OS da Italia supracitados liaviam prescripto. Quanto A penalidade, alem do grande perigo de se poder incriminar um facto licito, resulta da confusao das duas consequencias eventuaes, diversas em gravidade, a desproporgao da mesma pena em relagao aos factos provocadores das represalias. Este incriminagao, na sua significagao mais ampla, comprebende to- das as vias de facto offensivas de um subdito ou de uma nagaoestrangeira, mesmo as que se reduzem a simples injurias. Assim, a pena poderA ser gravissima quando d facto de provocagao for insigniflcante ou [353] insigniticantissimo, *e ainda quando os da represalia, teudo-se quido, forem de considera§ao pouco attendivel. Comtudo, para se reduzir tanto quanto 6 possivel a applica9ao d'este nosso art. a proporgoes justas, os juizes poderao encontrar, quanto 4 criminalidade do facto, quando avaliada pelafe suas consequencias, a dis- posigao do Cod. no art. 20, nos. 5 e 11, combinada com o art. 82, e quando se nao verificarum essas consequencias ou forem sem importancia, a disposi§ao do mesmo art. 20, no. 11, combinado com o art. 83, no. 40. O Cod. por^m e aqui previdente em parte, pois se nao resalvou os casos em que ao facto material corresponda uma pena menor, resalvou aquelles a que deva impor-se uma pena maior. Emendou assim a omissao dos Cod. Hesp. e Fr., adoptou a que se acha, nos da Italia supracitados, e vitou o defeito* de igual declaragao do Cod. do Brazil, restricta As offensas commettidas contra subditos bra- zileiros. COUNTER CASE OF THE UNITED STATES. 57 No Cod. da Baviera, art. 300, se incrimina o facto d'aquelle que 1 tenha dado nao so urn motivo fundado, mas ainda occasiao, faci- [354] lidade e kt6 pretexto para uma na§ao estran*geira se collocar em est&;do de guerra, mas exige essencialmente que o tenha assim pra- ticado com esse mesmo flm " dans une intention hostile,''^ o que salva com- pletamente todo odioso que resulta do empregp da palavra' jpreteajto, 'expepto quanto 4 penalidade; porque aquelle que n'uma intengao hostil pratica factos de provocagao de guerra fundados, nao deve ser consi- derado na mesmalinha de criminalidade que o que na mesma intengao so subministroa um pretexto. Se a guerra se nao justiflca pela gravidade da provocagao, a imputa- gao moral das suas consequencias se divide e rec^e sobre a na9^o ini- miga. O' crime, como temos exposto em outros logares, para ser punido com justiga deve ser considerado tanto na sua causa moral remota como na sua causa moral proxima, sem abstrahir dos seus effeitos e da influencia que uma ou outra causa tenha para elle exercido. Antes de concluirmos as nossas observagoes sobre o presente art. no- taremos que se tern censurado n'elle um defeito mais de redacgao que de doutrina; porque comprehendendo para a repressao, tanto a provoca- 9ao productiva de declaragao de guerra como de represalias parece [355] *deixar impune a provoca9ao a hostilidades, que nao tomam o ca- racter nem de guerra declarada, nem de ataque ouoffensas indivi- duaes a portuguezes. Esta omissao tem parecido gravissima em um Cod. Penal, principalmente em presen§a do art. 18° das disposi9oes geraes, vedando ampliar a interpreta9ao alem dos seus termos, embora exista identidad^ ou ainda maioria de razao. Todavia, como as represalias comprehendem todos os meios possiveis de lima nagao alcan9ar reparaqao do mal que recebeu, e podem ser nega- tivas ou positivas, e estas geraes ou especiaes, recaindo ou sobre cousas da na9ao ou de individuos a ella pertencentes ; na expressao represalias se comprehendem as hostilidades. Alem d'isso na declaragao de guerra, expressao de que serve o art., se comprehendecomo equivalente a declara- gao de hostilidades, 6, qual pode preceder o emoargo ou arresto, que se re- ■ laxa obtida a repara9ao, mas que entra essencialmente na .expressao represalias. O verdadeiro defeito" de' redac9ao que notamos 6 o que faz suppor no presente art. como impossivelwuia guerra sem declara9ao previa. As- sim 6 recebido como principio entre as nagoesantigas e modernas, mas ' na pratica, sem represalias nem declaragao algtima previa solemne [356] *setem visto, e e portanto possivel comegar a guerra de facto, quanto a nagao offendida ou aggressora tem por inconveniente pre- venir e avisuT a nagao offensora ou aggredida. Assima expressao do art. a uma declaragdo de guerra " devia ser emen- dada pela expressao" a uma guerra "aucune declaration ou autre avis h I'ennemi de I'existence de la guerre est n^cessaire pour 16galiser les hostilit^s." (Wheaton, Droit intern., torn. 1°, p. 279.) Quando por6m nao precede a guerra a declaragao € o mesmo facto da guerra que dis- pensa e prejudica ou antes exprime a declaragaoj e assim deve enten- , der-se o presente art. Com mais fundamento deve notar-se que nas palavras de que langou mas legislador " todo o portuguez" imidagao do Cod. Fr, " tout fran- gais — parece a char-se um argumento concludente da comprehensao dos ministros d'estado ; mas que este argnmento perde grande parte da sua forga, em vista dos art. 146", 147°, e 148° aonde as mesmas palavras, 58 TREATY OF WASHINGTON PAPERS ACCOMPANYING ■«' todo portuguez,'" sa o tomadas como entidade distincta da entidade go- verno, e portauto distincta dos individuos que o compoem. Parece resultar da redac§ao especial d'este art. que somente poderao ser culpados os ministros d'estado pelos crimes previstos uo. art. 146°, e 148°, quaudo auctorisarem os factos geralmente puniveis contra todo portuguez^' auctor principal e directo, se a auatorisa§ao, cousiderada como ordem, conselho ou provocayao /or causa deter mmante on uma das causas determinantes do mesmo facto, qualiflcados entao os minis- tros d'estado como participantes, co-auotores ou cumphces, segando o grau de influencia que tiveram e pelas regras geraes dos art. 25°, [358] e 26°. *Isto porem accusa a deflciencia e i ncoheren cia do Cod. com relagao aos ministros d'estado. Se estes se cousideram partici- pantes em igual grau, o facto em relagao a elles devia ser mais severa- meute reprimido do que a respeito dos outros co-r6us, porque o abuso de poder e falta de lealdade nao 6 menos um elemento aqui de aggrava- gao que na liypotbese do § un — do art. 143°. Seria iDJustiflcavel que un Portugaez se cobrisse para desviar a pena com a auctorisa9ao de um ministro d'estado ; causa remota das Lostili- dades ou represalias, e o mesmo ministro ficasse irresponsavel pela concessao da mesma auctorisagao em diametral repuguancia com o art. 298°. Demais, nos termos d'este art. 298' quanto ao delinquente directo, a auctorisa9ao do goveruo para se tornar causa justiiicativa dos crimesque produziram resultados prejudiciaes k seguranca do estado, deve ser obrigatoria, isto e, tal qae importe a obediencia correlativa ou uma ordem. Se a auctorisacdo 6 contra a lei fundamental do estado ou contra outras leis, ella 6 facultativa, e como tal nao releva o que d'ella usou delinquente, principal e o ministro pedendo sem crime deixar de a [358J usar *maxime quando entre o de estado nao houver rela9oes hierarchicas que fa§am considerar este superior, como se demon- stra por argumento do No. 20, do art. 20°, et do No. 5°, do art. 14°.* *Teria sido conveniente que o Cod. resalvasse aquelles actos de defeza ou de pro- vocapao qtie oa d(51^gados geraes do governo, coustifcuidos em necessidade, podem ser obrigados a practicar sen do incompativel o seu procedimento com a auctorisagao do governo d^terminadamente para esses actos. Os noasos goveruadores do ultramar, mesmo de provincia e postos maritimoa distan- tes da costa, os commandantes de corpos militares, os de navios de guerra, etc., podem sem ordem expreasa do governo repellir pela for^ das armas um ataqne, ou mesmo, para manutenjao da dignidade e int(5resses naoionaes tomar a inioiativa de hostilidades ou represalias. (Ortolan, Rfegl. inter., liv. 3°, cap 3°, princ. g^n.) "Asaim em presenpa do que lev^mos dito, aa palavraa do art. Todo o portuguez [359] que por quaesquer actos nao aiictoHsados e*peJo governo er2)ozer o estado a uma declara- fdo de guerra" poderiam ser convenienteraente emendadas dizendo-se " todo o por- tuguez nao auctoi'uado pelo governo, que por quaesquer actos liostis ou criminosos expozer o es- tado a uma guerra". A guerra mesma nao 6 em ai maia que uin eatado de represalias geraes e continuas, em quanto n'esse estado tudo o que 6 permittido a uma das partes belligerantes se considera llcito ^ outra. (Solimalz, Droit des gena europiSena, livre 6°, cap. 1^ pag. 214.) Isto comtudo soffre uma limitafao g, respeito das mesmaa nagoes que sustentam no estado de paz um apparato bellioo, taato em terra como no mar, cujos exeroitos e arma- das, confundindo por sua attitude o estado preventivo com o de ameapa e aggressao permanente, compromettem a existencia ou independencia de outras najoes, mais ou menos determinadamente, podendo de improvise e por ordens expedidas em segredo veri- ficar um ataque naval ou uma invasao. Eatas palavras " declaraf ao de guerra " nao tSem hoje a mesma signifioaf ap que tinham em outras eras, oonsiatiudo na intiniagdo mandada fazer a uma n^pao em sen (360J *mesmo territorio por um arauto d'armas ou mensageiro, precisamente como um repto ou desafio. Estaf6rma solemne oessou desde o meado do seculo 17", e ficou snb- stituida pelo deoretameuto da guerra e sua c'ommunicagao official as uagoes aggredidas, alliadasou neutras, accompanhadade manifestos ouexposipao de motivoade justifieafao, COUNTER CASE OF THE UNITED STATES. 59 a que respoaclem osoontra-mauifestos, at^ que efifeotivamente rompem as bostilidades. Todavia auctores existem oomo Bynkershoek, que sustentam que nem eates manifestos sao neoessarios, e muitas vezes de improviso, on de hostilidadea em hostilidades se aggrava entre as nafoes a sua situagao at6 h manifestafao formal do estado de guerra. Guerras tem havido sem previa deolarafao ; como foi a que rebentou entre a Pranpa e a Inglaterra em Junlio de 1755, sdmente deolarada solemuemente em Maio de 1756 ; e nas negociagoeB movidas em 1761 sobre restftui^ao e indemnisaeao de presas feitas antes d'essa declaragao entre aoorte de Versailles e a de Londriss, eustentou eata aberta- mente a falta de direito S. reclamapao como infundada por falta de convenijao especial e dependente de um prinoipio de direito das gentes snjeito a contestapao. X361] *As surprezas por6m d'este genero tomamo caraoter de perfidia e aleivosia. E a guerra dos piratas e salteadores em ponto grande. Felizmente similhantes aggres- soes inesperadas sao boje pouco provaveis de facto porque a toda a" guerra precedem symptomae e actospreparatorioa que manifestam o estado do transipiio e constituem como uma declarafao tadta que substitiie a solemne ou expressa. O segredo absoluto niio 4 possivel no estado actual da organisapao, relapoes e facilidade de communicagoes entre as nagoes modernas. (Ortolan, Efegl. intern., liv. 3°, cap. 1°.) Portanto o elemento diriinente, admittido sem excep§rio no presente art., nao pode com verdade moral ser admittido. A malicia ou im- prudencia do ministro d'estado que auctorisa o acto, nao destroe nem o elemento moral maleiico na pessoa do auctorisado, nem a responsabi- lidade directa que Ihe resulta do abuso que fez du sua liberdade e actividade. Alem d'isso, assim como Icmbrou no § un. do art. 143° particularisar OS ministros d'estado quando fossera auctores directos tios factos a que o mesmo § se refere e em geral. no art. 193", os funccionarios supe- {362] riores que ordenassem aos sens inferiores um acto criminoso *tam- bem aqui deviam elles ser particularisados, quando simplesmente auctorisassem, e que assim, dando a outrem carta, diploma ou instruc- 5oes em pr^juizo de uma na§ao estrangeira ou de seus subditos, fossem causa da guerra ou represalias. Um ministro d'estado em similhantes circumstancias 6 criminoso, ou por traicao ou por imprudeucia, e em todo o caso h sempre responsavel por todos OS actos dii-ectos ou indirectos de proyoca§ao; 1° Quando Ihe falta a justi9a paru aggressao; 2° Quando nao Ihe faltando a justi9a, resulta maior mal politico e material contra a na^ao de recorrer a sorte das armas ; 3° Quando provoca directa ou indirectameute sem ter de antemao calculado as for^as da reciproca defeza e ataque. Tanto maior e 51 extensao do direito politico, que sobre declarafao de guerra a curta, no art. 75° § 9° concede ao poder executivo, sem dependencia de deliberagao das camaras legislativas, quan to maior e mais especial deve ser a repressao legal contra os ministros d'estado, que auctorisarem pela provocagao as represalias e em seu seguimento en- volverem por tal forma a nagao em immensos sacrificios, difficuldades e perigos. (363] *Portanto, se presente art. toma como circumstancia diri- mente e em termos absolutos a auctorisagao do governo, para a provoca9ao 4 guerra ou represalias, a justiga 6 a politica pediam que o cod,, incriminasse o facto da auctorisagao em si mesmo, quando abusiva por maleflca ou ciilposa contra os membros do gabinete que d'ella par- ticipassem como auctores ou cumplices. Se OS crimes que os ministros de estado podem commetter no exer- cicio de suas funcgoes tfiem uma natureza especial que deva ser estudada e tratada para uma lei particular, cumpria entao elimina-los completa- mente do cod. e nao os comprehender, j4 por determinagao especial, como se fez no cit. § un, do art. 143° j4 como a cada passo por deter- minagoes geraes absolutas 'Hodo portugues, todo ofunccionario puUico" sem resalva alguma dos mesmos ministros, que muitas vezes, como veremos, Ihes torna o cod. de irrisoria, absurda ou iaipossivel appli- cagao. 60 TREATY OF WASHINGTON — PAPERS ACCOMPANYING [364] *Ae,t. 156. ■ Qaalquer pessoa, que sem auctorisagao So gover. no recrutar ou flzer recratar, assalariar ou flzer assalariar gente para o servigo militai' ou maritimo estrangeiro, ou procurar armas ou embarcagoes ou munigoes para o mesmo flm, sera conderanado no maxi- mo da prisao correecional, e no maximo da multa. § unico, se o criminoso f6r estrangeiro, ser4 expulso temporariamente. Este art. parece ser tirado, quanto a redacgao, do art. 22" do Cod. P6u. Fr. : Seront punis de mort ceiix qui auront lev6 ou fait lever des troupes armies, engage ou enr616, fait engager ou enr61er des soldats, ou leur auront fouruis ou procure des armes ou munitions sans ordre ou autorisation du gouvernement. Pela collocagao que ali tern este art. 6 fora de dnvida que somente e applicavel ao caso em que se provar, que os recrutamentos tinham por flm pertubar a seguranga interna do paiz. O tribunal de cassagao de Paris, por accordao de 13 de Fevereiro de 1823, decidiu que esta prova era inutil, e que no silencio da lei se devia cousiderar somente o facto material, com abstracgao do seu flm. Mas Chauveau e H61i6, Theorie du Cod. P6n., cap. 18, demonstram que esta doutrina 6 inteiramente contraria ^ lei, e que nem o legislador podia ter a intengao de ferir com a pena de morte attentados [365] *de outra natureza. Tratando-se de recrutamento para um paiz estrangeiro naose poderia justificar similhante pena. Este facto nao e criminoso em si mesmo, mas somente quando ou o flm nao e honesto, ou se dk violagao das leis de policia de ordem ou de conveniencia publica. E o egoismo da propria conservagao, deixando os partidos ou as potencias belligerantes entregues a si mesmas, quando um auxilio d'esta natureza poderia ou salva-las ou dar 4 guerra uma solugao mais rapid a e mais honrosa. O nosso Cod. por6m aproveitou a incriminagao nao so appli'cando-a aos recrutamentos para servico militar estrangeiro, mas tambem ampli- andoa ao servigo maritimo militar e nao militar converten do assim em delicto o que essencialmente nao e mais, que uma simples infracgao. que 6 illicito moralmente, nao pode tornar-se licito pela auctorisagao de nenhum governo, a qual so rec4e sobre factos moralmente licitos. Se a violacao consiste entao somente na preterigao d'esta solemnidade, a in- fracgao assume o caracter de contravengao mais ou menos grave, mas nunca deveria passar 4 categoria de crime. No mesmo sentido, mas com uma relagao directa a todo e qualquer flm, que fora de um caso urgente' nao fosse para repellir o perigo immi- nente da patria atacada pela guerra interior ou exterior, foi adop- [366] tada, no cod. de 1837, a incriminagao do *cod. Fr. e debaixo da mesma pena de morte. Prohibia pois tambem esse cod. implicitamente os recrutamentos oii alistamentos para o servigo estrangeiro, mas auctorisava todos os esforgos individuaes desta natureza, en caso urgente de defeza interna ou externa. O Cod. Pen. do Brazil 6 omisso e nao o censuramos por isso. Limitou- se a incriminar geralmente, no art. 73°, o facto de hostilidades, contra subditos de outra nagao por modo tal que se comprometta a paz ou se provoquem represalias.. O Cod. Hesp. art. 142° Eo. 6" so puniu, debaixo de pena de, ferros at6 ao maximo de morte, o que recrntasse em Hespanha para o servjgo das m-mas de uma potencia inimiga. E jjor^m omisso tambem na hypo- these de que trata este nosso art. Concordam por6m em ambas as hypotheses, que todavia distinguem OS Cod. da Sardenha, art. 181°, e o das Duas Sicilias, art 109°. O da Sardenha, na primeira hypothese, impoe a pena temporaria de COUNTER CASE OP THE UNITED STATES. 61 reclusao a trabalhos forgados, conforme as circumstancias, e iia se- gunda, a de mdrte. O das Duas Sicilias impoe tambem n'esta ultima hypothese a pena de morte, mas ua do nosso art. a pena de exilio temporario. [367] No moderno cod. da Baviera, art. 306°, No. 4", se *acha uma dis- posigao em parte e substancialmente concordante, classificada como de crime de traigao no quarto grau e portanto punida com a pena de dois a oito annos de prisao : Gelui qui enrdlera seorfetement des snjets du royaume au service d'v-ne xmissanoe iel- ligiranie itrangere on qui prelera aide et aasiatauce a im recruteur nonautoris^pourl'ex^owiion de ses desseins. Nos outros cod. da Allemanha, com relagao ao crime de traigao, sao considerados e punidos como sens actos preparatories os recratamentos assim como as compras de armas e de munico6s. A mesma doutriua se acha no cod. da Prussia § 64°. Finalmente no cod. da Austria, art. 77", tambem se encoutra concor- dancia com este nosso art., mas e so para remetter para a lei militar uma similhante incrimina^ao e portauto restricta ao estado da guerra com a nagao recrutante. Celui qui enr61e des hoinmes pour un service militaire stranger ... est jug€ et puni, conform^ment aux lois militaires, par le pouvoir militaire. Esta observagao foi feita por Cambac^res nas discussoes do conselbo de estado sobre o Cod. P6n. Fr. Foilhe porem r'espondido por M. Berber, que da insergao no cod. nao resultava inconveniente. Mas entao redar- gue o cit. Chauveau et H61i^, essa incriminagao flcou sem utili- [368] dade ; porque desde que se reconrece que *os factos previstos no art. sao factos militares, nao se ve motivo algum fundado que justi- flque uma excepgao para que esta disposicao tome logar eutre as de dereito criminal comifiun. E uma derogaQao 6, ordem das materias que cod. se propoz seguir. Todavia, se nao forem militares os culpados do- crime previsto n'este nosso art., nao poderao ser julgados pelos nossos tribuuaes militares em vista do que dispoe este nosso cod. no art. 16°. Quanto a penalidade, reconbecemos que ella e approprlada- aos delictos de que se trata n'este art. tan to pelo que respeita 4 de prisao correccional, como a de multa. B um dos poucos cases em que a pena pecuniaria tem logar sem vicio de conflsco. Sem meios pecuniarios nao se recruta, nao se assoldada, nao se assalaria nera se faz assalariar. O dinheiro e aqui movel principal, o iustrumento do delicto". A maneira indirecta de o sequestrar e em harmonia com o art. 81° do cod., certamente uma multa e forte. ' . Todavia o attentado pode ser mais ou meuos grave, as circumstancias de que se ache revestido desculpar ou nao, e mais ou menos a inten9ao do seu auctor. Eecrutar em pais estrangeiro para levantar o grito da liberdade, da independeiicia ou da legitimidade, e um procedimento que excitaassympathias de um publico illustrado, e de todos os homensque , detestam a tyrannia, a injustiga, a usurpagao. Eecrutar para restorar o absolutismo, adjudar uma conquista, restabeleoer a iuquisi9ao, destruir a propriedade ou o credito de uma nagao, e um attendado que excita horror, que detestam todos os que prezam a ordem, a paz e.a felicidade do genero humano. Pois que? deve incriminar-se o soccorro por tal meio a uma nagao que lute com forgas desiguaes para manter a sua independencia ou a sua liberdade ou a legitimidade de um principe "? Posto isto, a penalidade comminada sempre no seu maximo se torna 62 TREATY OF WASHINGTON — PAPERS ACCOMPANYING viciosa, por isso que assim se torna 'indivigivel. Necessariameiite da logar a punir-se com demasiado rigor, tanto a coutravengao que tinlia um fim nobre e generoso, como a que tinha urn fim ignoble e abominavel. Alem disso, uin recrntamento ou alistamento paro o servi§o maritimo uao 6 em si mesmo tao importante, como para o servigo militar ou naval de lima naQao estrangeira. A liberdade de commercio reciproco, que tanto convem e se deve favorecJer entre as nagoes, desculpa sempre a Yiolagao de uma formalidade de auctorisagao. Em especulagoes mercantis, com dependencia deviagens de mar, um dia, uma hora de tardanga podemalograr um bom negocio, tornar ruinosa ou inutilisar uma operagao de commercio que ali4s seria excel- [370] lente se fosse conduzida a tempo. O' *segredo mesmo, que 6 muitas vezes preciso guardar, o segredo que 6 a alma 6 a ^ida de similhantes emprezas, repugna a que se tornem sensiveis pela demora dos actos preparatories, para a qual concorreria forgosamente a ne- cessidade de uma auctorisagao do governo em casos taes.* * Sr. Levry entende, que este art. se deve entender do servigo de gverra ; e toma por fundamento que o oontrario seria um absurdo de tal ordem que nao 6 poasivej supp6r que o legislador o quizesse sanccioner. Por^m, salvo o respeito e mereoido louvot que tributamos ao joven jurisconsulto, nao vemos nas palawasneux no oontexto do art. razao concludente pararestringir a sua disposifao. Embora ella seja uma aberrajao de tudo quanto se acba legislado em outros cod. a similhante respeito, como sdmente aqui se incrimina uma contravenfao, co legislador podia ter em vista a necessidade de marinbagem tanto para os nossos navies de guerra, como mercantes naciouaes, nao reputaraos a disposigao tao absurda como parece h. primeira vista. Alem de que o re- [371] crutamentode marinbagem mercante quando nacional *nao prejndica o recrnta- mented'ella paraoservipo da armada, antes e para ella um viveiro util, em quanto que o reorutamento da marinbagem para a marinba mercante estrangeira 6 um meio de a subtrabir ao servifo nacional. E tanto mais isto assim precede, em vista do regulamento do 30 de Agosto de 1839, ordenando no art. 13° do cap. 3° que os navios inercantes aejam esorupulosamente visitados para qae nao levem marinheiros porlugv^es sem permizao, e que, no caso de se encontrarem, o capitao do porto os entrfegue logo em custodia ao encarregado de policia, a fira de na primeira occasiao os remetter para o arsenal da marinba, para serem embaroados nos uavios dacorba, eencarregando, em art. addicional, o mesmo capitao de fazer todas as diligenoias possiveis para ter sempre um mappa de todos 08 marinheiros, com-declarafoo do numero com que se pode contar para o servifo da armada. Assim a comprebengao do servipo maritimo estrangeiro, com quanto nap militar, mas em geral maritimo, p6de sem o tigurado absnrdo considerar-se existir nas palavras " servifo militar ou maritimo estrangeiro " principalmeute porque por este mode [372] &oa, a, falta de auctorisagao incriminada*aquiem relagao ao recritiawie, como fora nos. §5 1° e 2° antecedentes a respeito dos recrutados on acatautes, com desig- nacao expressa dos aavios m&cantes. Em todo o case raconbecemos que a redecgao nao € boa, mas temos por melhor criti- car a lei, para que se reforme, que langar mao do ultimo dos recursos, o argumento por absurdo, para que a sua diaposipao litteral se neutralise. Dura lex, sed lex. Assim, ainda por esta consideragao se aggrava o vicio da penalidade. 'S'M so vem a ser punidos com a mesma pena factos diversos em gravi- dade pela intengao, mas factos diversos em gravidade por sua mesma natureza. Esta incriminagao tern o seu fundamento nas doutrinas de Wolflo e de Vattel, invocadas pelo governo americano en 179.3, no comego da guerra europea e incorporadas em uma lei do cougresso publicada em 1794 revista e restabelecida em 1818. Por esta lei e um delicto nao so augmentar a forga de um navio de guerra de paiz nao inimlgo, preparar uma expedigao militar contra esse ipaiz, como tambem assalariar ou recrutar para um servigo estrangeiro de terra ou de mar. Este, exemplo da America foi bem depressa seguido pela Gran-Bre tanha no acto do parlamento, 59° Geo. Ill, cap. 59°, intitulado, "Acto para impedir o alistamento ou recrutameuto" dos subditos de S. M. para ser- .' COtJNTER CASE- OF THE UNITED STATES. 63 A'igo estrangeiro ou o armamento e equipamento nos dominios de [373] S. M. n'uina inten9ao de *guerra sem permissao de S. M. A razao fundamental em que se flrmam Vattel e Wolflo para con- demnar os recrutamentos sem auctorisa5ao do governo, 6 que. estes sao uma prerogativa exclusiva da soberania que ninguem, sem xiermissao expressa, pode legitimamente exercer em territorip de outro estado, Mas todas as prerogativas da soberania teem os sens' justos limites e termos, nao vao a mais nem a menos do que 6 precise para se consequir oflm social. Se o recrutamento nao prejudica o servigo militar nem sub- strahe os recrutados ao tributo, dito de sangue, para com o ^eu paiz, em que se offende a prerogativa ? No acto constitucional federative da Allemanha, assignado em Vienna em 8 de Junho de 1815, e concedido no. art. 18° aos subditos dos estados confederados "eutrar no service civil ou militar de qualquer d'esses es- tados, comtauto porein, que e exercicio d'esse direito nae prejudique a obrigagae do servige militar que Ihes impoe a sua patria." Os Americanos acrescentavam, invocando em favor da sua neutrali- dade absoluta, os principles de direito natural, que assim como urn hemem se devia julgar em paz com outro homem, em quante este o nao aggredia, o mesmo se devia dizer de iiagae a na§ao. [374] *Mas esta argumeutagao tambem nao colhe, porque se celhesse para o case, ficava sendo false o direito natural que nae so nao incrimina tanto a defeza pessoal, come a de eutra pessoa; principle adoptado n'este nosse Cod. art. 14", No. 3 e outros art. concordantesj mas muito pele contrario condemna come immoral o facto, d'aquelle que presencia de' bragos cruzados a luta de um com outre homem e a morte ou ferimentes graves de am d'elles sem Ihe acudir pedende. Nada d'isto porem pode ter applicagae ao servigo maritime mercante em tempo de paz, em que nae € de presumir a simulagae o frande em favor da guerra. Em cenclusao pels esta incriminagae coniprehende factos de diversa gravidade e natureza que converia discriminar e punir diversa- mente segundo a qualidade de delicto, como era de justiga, a que resiste a disposigao penal do art. em razao do maximo em que para todos 6 fixada. Quante a modiflcagae que se encentra no § un. consideramos adequa- daesta solugae do legislader. Quando o recrutante 6 um estrangeiro, e sem vistas algumas hostis centra nos, a expulsae do reino e o precedi- mento que mais convem. B nao tem aqui esta penalidade o defeito das antecedentes, porque sendo imposta a temperaria, sem algum eutra declaragao, devem os es- trangeiros ser expulses per tempo que nae excedende'e maximo de doze annos, pode segunde as circumstancias, reduzir-se at6 tres anuos, con- forme o art. 36°. [375] "[Translation.] CODE AND COMMENTARIES. Theory of international right, applied to the Portuguese penal statute, com- pared with the Brazilian statute, the national laws, the statutes and crim- inal laws of ancient and modern nations, presented to His Imperial Maj- esty Dom Pedro II, Umperor of Brazil, by F. A. F. Da Silva Ferrao. Vol. ir, (Lisbon, 1857, J pp. 181, 231. Article 148. If any Portuguese subject shall, by any acts whatso- ever not authorized by the government, expose the state to a declara- tion of war. or expose Portuguese subjects to reprisals from any foreign power, said offender shall be condemned to temporary ban- 64 TREATY OF WASHINGTOIJI PAPERS ACCOMPANYING ishment, if such war or such reprisals be carried into effect ; and if such war or such reprisals be not carried into effect, he shall be condemned to correctional imprisonment for a term not td be less than one year and not to exceed three years, without excepting any further punishment which said offender may incur, if the acts he has committed be a crime ■ punished more severely by law. (Art. 29, No. 4, &c. ; Art. 30, No. 4, &c. ; Constitutional Charter, Art. 9, § 2.) The letter and provisions of this article concur with articles 84 [376] and 85 of the Prench statute ; with article 148 *of the Spanish statute ; with article 73 of the Brazilian statute ; with articles 117 and 118 of the statute of the Two Sicilies ; with articles 179 and 180 of the Sardinian statute ; and with article 113 of our statute of 1837. But they differ in one point from the French statute, and from those of the Two Sicilies and of Sardinia which have been copied thereon. Said statutes make a difference in the indictment when peace has been acttially endangered, and when there has only been a provocation to reprisals. The Brazilian Statute, ours of 1837, and the Spanish statute, have considered both cases as being one single offense. The provisions of the above-mentioned article are to the same effect. But we do not think that there be sufficient reasons for such provisions, and we consider that the French statute, and those which have been copied thereon, have taken a more proper view of the question. , If, under the provisions of said article, a material fact cannot assume a criminal character unless it be eventually followed by evil results, the severity of punishment is to be measured on the gravity of the consequences of said facts. Now, if such consequences are of a more serious character in the event of war than in that of reprisals, when not general nor continued, [377] it was necessary that there should be a difference in the *indict- ment, in order that there be also a difference in the i^unishment, which is not to be so severe in the latter case. There is another considerable difference in the French statute, article 84, as regards the material fact. It is not sufficient that such fact be not authorized by the government ; it is necessary, moreover, that it be in itself of an hostile character, (par des actions hostiles.) * The statutes of Sardinia and of the Two Sicilies have employed the same words, and the latter requires, further, that the fact be such as to be qualified a crime by law, (par quelque crime ou par des actes hos- tiles.) When the question was to explain whether an act was hostile or not, the law did not determine those which were to assume that character and those which were not, but left them to the discretion of the judges to decide upon that question, acquitting the defendants whenever the case was that of acts being illicit only for that negative reason that the act was not authorized by the government, a reason which cannot be admitted as being contrary to the constitution ; in fact, the authoriza- tion of government is only necessary when claimed for certain and de- termined acts, and not in an undetermiu'ed manner, and the law tolerates and permits whatever it does not prohibit. The Spanish statute did not keep the term of the French stat- [378] ute, (hostile,) but instead of the 'words " non-approuves *parle gouvernement," it says " no autorizados competentemente," (not permitted by competent authority,) and thus it does not require the authorization of the government when the fact is authorized by law, which dispenses with any other authorization ; and in the present case it was not necessary for said statute to use the word " hostile."' and it in- COUNTER CASE OF THE UNITEB STATES. 65 volue'fe also the two ideas (crimes ou hostiles) of the statute of the Two Sicilies. The Brazilian statute is still more explicit thau all the, above-men- tioned ones, as will be seeu by the following words, which we think it incumbent OD ns to quote all at length: " Commit without the order or authorization of government hostile acts against the subjects of another nation, such as to endanger peace or provoke reprisals." Tbus it remains understood that, if the fact in itself were not such- as to give just reason for war according to international right, it could never be reputed a crime, even were it not authorized by the govern- ment, and were it eventually followed by war. Such a fact is not then a reason, bnt a mere pretext for war. It is within the limits of moral possibility to avoid all acts from which might arise just reasons for war, generally acknowledged as such j but it is not withjin the reach of' human prudence to provide against pretexts. [379] The crimination under said article did not assume the * same form. 'Not only did it not make any difference between facts of different gravity, falling thereby into the same error as the Spanish statute, the Brazilian statute, and ottr own statute of 1837, but in in- volving "any cases whatsoever" it has still been the grounds for law- suits, the criminality of which has not and cannot have any moral truth. Thus, and considered under these two points of view, the article is more defective than those of Brazil, Spain, and our own of 1837, and it ha« not adopted what was proper in them, neither has it imitated, noT clearly pointed out, nor amplified the prescriptions of the French aud Italian statutes above mentioned. , As regards the penalty, in addition to the great danger of a lawful act being possibly incriminated, the confusion of the two eventual conse- quences, different in gravity, is the cause of the same punishment not being proportionate to the facts which have provoked the reprisals. This crimination, in its widest acceptation, involves any offense what- soever against a foreign subject or foreign nation, even were it bnt a mere insult. Thus the punishment might be very severe though the provocation were unimportant, and though the reprisals arising there- from were of little consequence. Nevertheless, in order to reduce as much as possible the ap- [380] plication of our said article to *right proportions, as regards the criminality of the fact, according to its consequences, the judges will.be able to avail themselves of the pr&vilions of the statute, article 20, Nos. 3 and 11, combined with article 82; and when such conse- quences do not follow, or shall be of no importance, of the provisions of article 20, Ko. 11, combined with article 83, No. 4. But the statute here is partly provident, because, if it has not decided on the cases when a slight punishment Gorresponds to a material act, it has decided on those when the punishment is to be severe. It has thus corrected the omission of the French and Spanish statutes, it has adopted the provisions of- the above-mentioned Italian statutes, and avoided the defect of a similar declaration in the Brazilian statute re- strained to Qffenses committed against Brazilian subjects. The Bavarian statute, article 300, incriminates the act of the party who has given not only a just reason, but even an occasion, a-faeility, or only a pretext for a foreign nation placing itself in a state of war, but iferequires essentially that the proceedings of such party be actually to that purpose, (dans une intention hostile,) waiving thus the obnoxious character of the word " pretext,"excepting with regard to penalty, because 5 A— II 66 TREATY OF WASHINGTON PAPEES ACCOMPANYING s the party -who, Mth a hostile intention, commits such acts as to pre voice rightly a war, must not be placed on the same line of criniiuality as the party who, with the same intention, has. only given a pretext for war. If the war be not justified by the gravity of the provocation, its con- sequences are to be morally imputed to the adverse nation. [381] *As we have already remarked, it is necessary, in order to pun- ish rightly a crime, to consider not only its remote moral cause^ but also its immediate moral cause, taking into account its effects and the influence of both causes. Before concluding our observations on the present article, we shall observe that our criticism bears more on the words than on the doctrine of said article; because, though it involves in punishment the provoca- tion from which arises a declaration of war, as well as that which is the cause of reprisals, it seems to leave hupuuished the provocation to hos- tile acts, wliich do not assume the character of a declared war, nor that of an attack or individual offense against Portuguese subjetits. This omission has appeared to be a very serious one iu a penal statute, especially in presence of article 18 of the general provisions which forbid to amplify its construction beyond its terms, though the reason for pun- ishment be identical or even greater. However, as the reprisals involve all possible means for a nation to obtain satisfaction of the offense it may have suffered, as they may be negative or positive, and these may be general or special, against the property of the nation, or that of its individual subjects, the word "re- prisals" involves the idea of hostile acts. Moreovei;, the words [382] " declaration of war" in the article are to be *considered as equiv- alent to the declaration of hostilities, which may be preceded by the seizure or arrest, which may be withdrawn when satisfaction is ob- tained, but are essentially involved in. the expression "reprisals." But the real fault we find in the wording of said article is that it leads to suppose that a war cannot possibly break out without being pre- viously declared. Such is indeed the principle acknowledged by ancient and modern nations ; but in practice it has been seen and it can happen that war does begin in fact without any reprisals or any previous solemn declaration, whether the offended nation be aggressor or attacked. Thus, the words of the article "to a declaration of war" ought to be corrected by the words "to a war." ("Ancune declaration ni autre avis k I'ennemi de I'existence de la guerre n'est n^cessaire pour 16galiser les hostilit^s.") (Wheaton, I)roit international, tome i, p. 279.) When, then, the war is not preceded by a declaration, it is the fact of war itself that dispenses with, and prejudges or rather expresses the declaration; and it is in such way that the present article is to be understood. There are more grounds to observe that in the words used by the legislator, "any Portuguese subject,'^ which are an imitation of [383] the words " tout FBangais" *in the French statute, there seems to be a conclusive argument for involving therein the ministers of the state; but that this argument loses a great deal of its power in consequence of articles 146, 147 and 148, in which the same words, " any Portuguese subjects," are employed as an entity different from the entity " aovernment," and therefore different from the persons who are part there jf. It appears to result from the especial wording of this article, that the ministers of the state can only be indicted for the crimes under articles 746 and 748, when tliey have authorized the facts for which "any Por- tuguese subject" is generally liable to punishment, as direct and principal COUNTER CASE OF THE UNITED STATES. 67 author thereof, if said authorization, considered as an order, an advice, or a provocation, has been the principal cause or one of the principal causes of said fact, the ministers of the state being then considered as parties, co authors, or acdofnplices to such fact, on account of their great iutluence and in conformity with the general rules of articles 25 and 26. • But tliis sliows the deficiency and incohereucy of the statute as re- gards the ministers of the sta4:e. If they be- considered as parties to the ott'ense in a similar degree, they ought to be punished more severely for the saiiie fact than theif co-defendants, because the abuse of {384J their power and the want *of loyalty on their part is as well an aggravating element as in the case of section 1 of article 143. It would be unjustifiable that any Portuguese subject could escape punishment in covering himself with the authority of the minister of state, who is the remote cause of hostilities and reprisals, and that said' minister should be allowed to remain unresponsible for having given such authority in direct opposition with article 298. Moreover, under this article 298, with regard to the direct offender, the authorization of the government, in order to be considered as a jus- tificative cause of the crimes from which have arisen such results as will endanger the safety of the state, must be of an obligatory charac- ter — that is, such as will involve correlative obedience or an order. , If the authorization be contrary to the fundamental law of the state, or to any other law, it is optional, and as such it is not an excuse for the person who has made use thereof, and who might have not done so widioitt a crime, especially if there be no hierarchical connection between the principal offender and the minister of the state, such as the latter be considered as a superior, as is demonstrated by the argument of No. 26 of article 20, and of No. 5 of article 14.i Therefore, the absolute element admitted without exception by the present article cannot be admitted with moral truth. The ill-will or im- i)rudence of a minister of the state who authorizes an act does not de- stroy the mischievous moral element in the person so authorized nor the direct responsibility which arises from the abuse of his liberty and ac- tivity. [385J *' It would liave been convenient that tjie statute had excepted those acts of defense or provocation which the general delegates of the government may, in case of necessity, be obliged to commit, though not competent to do so, uor being pre- vidusly authorized for that special purpose. Tile governor of onr dominions alu'oad, even of our provinces and naval stations dis- tant from tlie const, the commanders of military bodies, of men-of-war, &c., can, with- out any express order from the government, repel by force of arms any attackj'or even, in order. tip niaintfiin the national dignity and interests, take the initiative of hostilities or reiuisals. — (Ortohin, Rfegles internationales, liv. .% cap. 3. Prin. gen.) Tints, in iicconUnice svith what we have said, the words of the article, "Any Portu- gnese subject who shall, by any act whatsoever, not authorized by the government, expose tbe state to a declaration of war," might be conveniently corrected as follows: "Ally Py their attitude the preventive state with tbat of liBrnuineut threat and aggression, endanger the existence or independence of 'other nations, in a mine or less precise nniliner, on account of their being able, at any time, by sudden orders and secretly forwarded, to carry into effect a naval attack or an invasion. The words, "declaration of war," have no more the same sense they usbd to have in former time<, when sn.i-li declaratiim was an intimation made to a nation on its own territory, through a herald-at-anns, or a messenger, as if it were achallengi. The ■ solemn form ceased to Le practiced about the middle of the seventeenth csuturyj^ 63 TEEA.XTJ OF WASHINGTON — PAPERS AiC COM PANTING Moreover, in the same manner as seetioa 1 ofartiele 143 points ouUo- the ministers o£ the state when they are direct authors of facts to whjeh same section refers, and as article 198.points generally to allsuperior f«ac, tionaries, who have ordered any, criminal act too their subordinates, iit the same manner ought they to be pointed out too when they have merely authorized such facts, and been thus the cause of war and repri- sals, by giving to another persou. a letter, a diploma, or iustrnc- f389'J tions such as *to be prejudicial to a foreign nation,, or to its sub: In such circumstances, a minister^of the state is criminal either by treason or by imprudence, and he is always responsible for all direct or indirect acts of provocation : first, if his aggression be not justifie'd; secondly, if, though it be justifled, there arises for the nation a greater political and material injury on account of its haying resorted to armsj thirdly, if he provokes in a direct or indirect manner without having previously calculated the respective forces of both parties for attack and defense. So much the greater is the extent of the political right,,as regards the declaration of war, given under article 75, section 9, of thechart«r,,to the executive power, who is not restrained to discussion on that point in th& legislative chambers; so much the greater also and; more especial must be the legal penalty inflicted upon the ministers of the state who give rise, by provocations, to reprisals against the country, and,. in conseq^ufinee thereof, involve the nation in enormous sacrifices, difficulties, and dan- gers. Moreover, if the present article considers as an absolute impediment the. authorization of the government for a provocation to war or repri- sals, both justice and policy require that the statute should criminate the fact of the authorization in itself, when it is abusive or criminal,. on the members of the cabinet, who have taken part in it as authors, of accomplices. [39j0] If the crimes which may be committed by the ministers *of the state in their official functions be of an especial cha-racter,, which is to be dealt with by a particular law, it would have been conve- nient for the statute not to provide in any manner against them, nor to mention them, neither in an espi^cial manner, as in.the abOve-quoted section 1 of article 143, nor in ageneral and absoluteLma,iujer, as it happfiiu^ at every instant, (any Portuguese subject, any public functionary,) with- [387] ■wlieii,in place thereof, appear^'ed the decrees for war, official notice of which is ' given all uatjons, whether foes, alliea, or neutrals, and is accompanied with nian-r ifests or exposition of justiticati/e motives, in answer to which counter manifests are also issued nutil the hostilities actually break out. However, certain authors, such a* Bynkerslioek, contend that these manifests are not necessary, and' it often happens that the respective situation of two nations is eitlier suddenly, or from hostile acts to hos- tile acts, brought,to the actual manifestation of w.ar. Wars have taken place without any previous declaration ; such was the war between France and England which burst out in June, 1755, and was only solemnly declared in May, 1756 ; and in the negotiations which took place in 1761, between the courts of Versailles and London, with,regard to restitution and compensation for the prizes captured previous to said declaration, the latter court contended that such olaiiin was groundless for want of a special con- ventieii, and as being dependent upon a point of the law of nations liable to con- testiation. [388] * But such surprises assume a perfidious and treacherous character. It is the war of pirates and liighwaymen practiced on the high soas. Happily such sud: den aggressions are nowadays very improbable, in fact every war biiing preceded by certain symptonjs and preparatory acts iudicjative of a state of transition, and consti- tute, as it were, an implied declaration, which takes- the pliice of a solumn and explicit one. An abaolnte secret is not possible in the present state of organization, relations, and easy intercourse between modern nations. — (Ortolan, Rfegl. intern., H v. 3, cap. 1.) ' COUNTER CASE OP THE UNITED STATES. 69 -tfn't any defeasance wHatSoever for said ministers, against whom, as we sMall see in a great many places, the statute provides in a manner irris- oty, absurd, and of impossible application. Article 156. Any person who, without the anthorization of the .^vernment, shall recruit or procure to be recruited, hire or procure to be hired, men for a foreign military or naval service, or shall procure arms, or ships, or munitions for the same purpose, shall be condemned ^to'the maximum of correctional imprisonment and to the maximum of time. Only Seotion. If the offender be a foreigner, he shall be tem- porarily expelled from the country. This article appears, with respect to its wording, to have been copied from the article 22 of the French penal statute : Seront punis de mort cenx qui auronl levB ou fait lever des troupes ariixfies, engage on enr61€, fait engager on enrfiler des soldats, on leur auroat fourui des armes [391] oa munitions sans ordre ou antorisation dn *gouvernement." By the construction of that article it is not doubtful that tt can only be enforced in cases where it may be proved that such recruiting had for object to disturb the internal safety of the country. The court of cas- sation at Paris, in its proceedings of the ISth of February, has decided that such proof was not required, and that the law being silent, the ma- terial fact alone was to be considered, excluding entirely its object. But Chanveau and H61ie (Th6orie du Code P^nal, cap. 18,) show that this doctrine is altogether contrary to the law, and that the legislat-or cannot have intended to inflict capital punishmeht for offenses of other character. Such a penalty could not be justified as concerning enlistnients for a foreign country. This fact is not Criminal in itself, but only when the object is not honest, or when it infringes the municipal laws, or laws of police, or ot public couTcnience. It is the selfishness of proper conser- vation, leaving the contendingparties or belligerent powers to themselves, when a succor of that kind might save them, or bring the war to a sooner and more honorable conclusion. Our statute has taken that crimination and applied it not only to en- listments for foreign military service, but also to naval and mili- if392] tary *service itself. It has declared an offense that which is essen- tially of a character that no government whatsoever can make licit, for the government's authorization can only be granted to that' which- is morally licit. But if the violation of the law consists only in neglecting thsitformalite, the infringement assumes the character of a delinquency of more or less importance, but can never assume that of a crime. The crimination of the French statute, with the same provision for capital punishment, was adopted by our statute of 1837, with the same meaning, but with direct connection to any object whatsoever, except- ing the case of urgent necessity for repelling an imminent danger of the country attacked by war abroad or ou its territory. The same statute implicitly prohibited any recruiting or enlistment for foreign service, but authorized all individual efforts of that nature in cases of stringent necessity for defense abroad and in the country. The Brazilian penal statute has omitted such provisions, and we shall not criticise it on that account. It incriminates only in a general manner, under article 73, the fact of hostilities against the subjects -«tf another nation, snch as to endanger peace or to provoke to repri- ;f393] *The Spanish statute, under article 147, Ko. 6, inflicts the pnn- 70 - TREATY OP WASHINGTON PAPEES ACCOMPANYINa isliment of irons np to that of death on any one who shall, within the territory of Spain, recruit men for the service, of the armies of an 'hos- tile power. We shall therefore omit it with regard to our present article. The statute of Sardinia, article 181, and that of the Two Sicilies, con- cur with our two cases, between which, however, they make a differ- ence. In the first case the Sardinian statute inflicts temporary reclusion or the galleys, according to circumstances, and capital. punishment in tho second. The statute of the Two Sicilies inflicts also capital punish- ment in the latter case, but in that of our article it inflicts temporary exile. The modern Bavarian statute, article 306, No. 4, provides for an offense which is substantially the same, and is considered as treason at the fourth degree, and punished as such with imprisonment for a term of two to six years. Celui qni enrOlera secrfetement des snjets du royaume au service d'une puissance hel- Ug^rante ^Irangh-e, ou qui prStera aide et assistance a un reci-uteur non autcn-is^ pouiV 0x6- cution de ges desseius. ' • Under the other Germaij statutes, in connection with the crime of treason, are considered and punished as being preparatory acts [394] thereto the recruiting and pur*chasesof arms and munitions. The same doctrine is to be found in the Prussian statute, section 64. Finally, the Austrian statute, under article 77, concurs also with our article, but it provides only that a similar crimination be punished by . the military law, confining it, however, to the state of war with the recruiting nation. Celui qni enrdle des hommes pour un service militaire Stranger * * * est jug4 et pu%i coiiforni4nieiit aux lois milUaires,par le pouuoir militaire. Tliis observation was presented by Cambacerfes to the council of state during the discussion of the French penal statute. Mr. Berlier replied that there was no iuconvenience in inscribing such provision in the statute. But the above-mentioned Chauveau and R6\\6 answered thea that such a crimination would be useless, because, if it is acknowledged that the incriminated facts are of a military character, he did not see any reasonable ground that would justify such an exception as insert- ing said provision in the common law. It would be a derogation of the order of matters which was proposed to be followed by the statute. •However, if the defendants on the crime under our s'aid article be not soldiers, they cannot be tried by the military courts, iu accordance with the provisions of our statute, article'lG. [395] As regards the penalty', that of correctional im*prisonment and the. fine, we acknowledge that it is appropriated to the offense under said article. It is one of the very few cases where pecuniary punishment has not the inconvenience of being confiscation. Without pecuniary means no one does recruit, no one becomes a soldier, no one hires himself or procures himself to be hired. Money is here the prin- cipal inducement, or the instrument, of the offense.' A heavy fine is certainly a means to stop it, in conformity with article 81 of the statute.. However, the offense may' be of greater or of less gravity, the cir- cumstances of the case may exculpate or not, and in a greater or less degr.ee, according to the intention of the offender. To recruit iu a for- eign country for raising the cry of liberty, of independence, or of legiti- macy, is an enterprise which excites the sympathies of a noble public,, and of all men who hate tyraijny, injustice, usurpation. To recruit iu order to restore absolute power, to co-operate in conquest, to re-estab- COUNTER CASE OP THE UNITED STATES. 71 lisli the inquisition, to destroy the property or credit of another nation, this is a crime which excites horror, and which is detested by all those who appreciate order, peace, and the happiness of mankind. What ! must such proceedings be incriminated if intended to succor a,nation struggling with unequal forces in order to maintain its inde- pendence or its liberty, or its legitimate prince? [396] *Upon these promises a penalty which always threatens with the jpaximum of punishment is a vicious one, as it cannot be di- vided. It necessarily causes a too severe punislurtent to be inflicted ou the offender whose object was noble and generous, as well as the one whose object was abominable and base. Moreover, recrniting or enlist- ing for maritime service is not in itself as important as enlisting or re- cruiting for the military or naval service of a foreign power. Eeciprocal free trade between nations, which is so profitable and so worthy of encouragement, shall always exculpate an infringement of a mere formality of authorization. In mercantile speculations connected with'travels by sea, one day's, one hour's delay, may miscarry a good business, ruin or render worth- less a commercial operation which would otherwise have proved most profitable had it been managed in cfue time. The secret itself, which is often necessary to Jieep, the secret which is the soul and life of such undertakings, will not permit to be particular about the delay for pre- paratory acts, delay which would involve the necessity of an authoriza- tion in similar cases.^ [397^ *ThuSj if considered under this point of view, the defects [398J *of the penalty are greater still. The same punishment is not inflicted for facts of different gravity with regard to the inten- tion, but of different gravity with regard to their actual char- acter. [399] *This crimination has its grounds in the doctrines of Wolf and '■ Mr. Levy contends th^ said article is to be understood as providingruly for war- like service ; he grounds bis opinion on the fact that the contrary would he, so- ab- surd that It is not possible to suppose that the legislator would have enacted it. But, notwithstanding all the respect and deserved admiration we pay to the young juris- consult, we do not see in. the words nor in the (joiitext of the article any conclusive reason for limiting its provisions. Were it even an aberration from all that has been enacted on the subject in other statutes, as the incriminated fact is only a delinquency, the legislator may have considered the necessity of manning our own men-of-war and merchantmen, and we do not, therefore, consider said provision to be so absurd as it should appear at first. The recniiting of sailors for the national mercantile shipping is not prejtidioial to the recruiting, for the navy, but moreover our men-of-war can be 'Supplied with men from our merchant- vessels, while, on the contrary, the recruiting, for foreign merchantmen deprives our navy of sailor.s. And it is so well the case that, under the regulations of the 30tli of August, 1839, article 13 of chapters, all merchantmen are to be minutely searched in order that they do not raise Portmjuese sailors ividiout Imve, and, if any such sailors be found on board, the captain of the port is"to take them immediately into custody and give them up to the police officer, who shall, by the first opportunity, send them to the navy guard, where they shall bo shipped on board a, vessel of the Crown. And under the provisions of the additional article, the said cap- tajn is IJonnd to make all possible diligence, in order to have always a list of all the sailors, 'mtk declaration of the number of men tipon ivJiom one may reckon for the service of Thus, the meaning of foreign naval service, though not militarj', lut naral service gen- ei'ally, can, without appearance of -absurdity, be considered as involved in the words •" military service oi foreign naval service,^' so much the more that in this way the fact of non-auihorizaiion is incriminated against the recruHinr/ agent, as it was incriminated against the recruits and the parties accepting to be enlisted, by sections 1 and 2 above mentioned, with the express designation of merchantmen. Anyhow, we acknowledge' that the wording of the article is not good, but we deem it-niore proper to criticise the law, in order tlaat it be altered, than to ri'Sort to the last of arguments, the argumenffx absvrdo. in order that its literal provisions be contra- dictory with themselves. Dura lex, sed lex. 12 TEEATr :0r WASHINGTON — PAPEKS ACCOMPANYING Vattel, claimed by the American Government in 1793 in|he beginning of the war in Europe, and which have been incorporated in an act of Congress of 1794, corrected and re enacted in 1818. Under the provisions of said act it is not only an offense to increase the force of a vessel of war of a friendly country, and to prepare a mil- itary expedition against said country, but equally to hire or recruit men ' for any foreign service on land or on the water. The example of America was soon followed by Great Britain, by an act of Parliament, (59 Geo. Ill, cap. 59,) known as "An act to prevent the enlistment or recruiting of His Majesty's subjects for foreign ser- vice,, or ihe armament and equipment within His Majesty's dominions, with an intent of war without His Majesty's permission." The principal reason uponi which Vattel and Wolf ground their opin- ion in condemning enlistments without the authorization of the gov- ernment, is, that recruiting constitutes an exclusive prerogative of sov- ereignty, which no one can legitimately exercise, without express leave, in the territory of another state. [400] But all the prerogatives of sovereignty *have their just limits. It does not extend further than what is required in order to accom- plish the social object. If the enlistment be not prejudicial to the na- tional military service, if it does not free the recruits of the tribute of blood they are to pa§r to their country, where is, then, the offense against its prerogative? The federal constitutional act of Germany, signed at Vienna on the 8th day of June, 1815, permits, by article 18, all subjects of the con- federated states " to enter the civil or military service of any of those states, provided that such right do not interfere with the obligation incumbent on said subjects to enter the military service in their owa country if required to do so by statute." The Americans have amplified the principles of natural law, claiming in favor of their absolute neutrality, that as a pian must remain in peace with another man who does not assault him, thus also a nation must behave toward another nation. But this argument is not right in the present case, because it would assume that the natural law is*false, which not only does not incrimi- nate so much personal defense as that of another person (a principte, which has been adopted by our statute, article 14, No. 3, and [401] *other articles concurring with it,) but it condemns still more, as « being immoral, the fact of a man who remains an indifferent looker-on to a fight between two of his fellow-creatures, and allows one, of them to be killed or severely wounded, when it is in his power to assist him. But there is nothing therein which can be applied to service on board of merchantmen in time of peace, when there is no appearance of any concealment or fraudulent preparations for war. In short, this crimination involves facts of different gravity and dif- ferent character, which it would be convenient to discriminate from each other, and to punish in a different manner according to the char- acter of the offense, which would be consistent with justice, but cannot be done with the penal provisions of the article, the same maximum of punishment being enacted for all offenses under said article. With regard to the amendment in section 1, we consider this solution as adequate to the legislator. When the recruiting agent is a foreigner, and does not entertain any hostile views against us, the most proper course is to expel him from the kingdom. [402] And this penalty has not the same *inconvenience as the above- COUNTER Oa.SE OF THE UNITED STATES. - 73 mentioned ones, because being only temporarily inflictfid, ■without dec- laration, the foreigners are to be expelled from the country for a term of years not to exceed twelve years, and which can, according to cir- cmiistances, be reduced to three years, in conformance with article 36. £403] "No. 2.— EFFOETS TO PRESERVE THE NEUTRALITY OF THE AZORES AND MADEIRA. Mr. Harvey, United States minister, to Mr. Seicard, Secretary of State. [Extract.] Legation of the United States, Lisbon, October 3, 1862. / Sir : After my Ko. 157 was dispatched on the 29th ultimo, I had a per- sonal interview with the Viscount Sada Barrdeira, the minister of war, who is also acting as minister of foreign affairs during the absence of the Marquis de Loul6, in reference to the outrages at the Azores, the conduct of the Portuguese authorities there, and other matters con- nected with the general subject. I carried with me some of the testi- mony bearing on the important points, and submitted it to him with explanatory comments. He was frank enough to say that the islands in question had been used and abused by corsairs and pirates during centuries ;' that they were exposed and unprotected, and therefore might be so employed again; and that our best plan would be to send a sufflcient force there to protect American ships against threatened depredations and [404] to punish criminal *offenders. I informed him that two war- steamers had already been ordered to tbe islands, and that tlie sloop-of-war Saint Louis was ready to saij,; but I had detained her a day for my own dispatches, and offered him that opportunity of communi- cating with the Portuguese ofiScials. He thanked me for the courtesy, but said it would be impossible to prepare any instructions within the time named, and that the authorities of the Azores were already pos- sessed of the views of the government through the royal proclamation of last year. I called his attention particularly to the report of a project to establish a coal depot for " confederate " cruisers on the- islands, saying that it was part of a plan to equip and arm* against our commerce in iiagrant ■disregard of the king's proclamation. It was agreed between us that I should address Mm a note on the subject, directing attention to the points most requiring prompt consideration. A copy of that note is nowi inclosed for your information. It needs no explanation at my hands. No effort has been spared and no precaution neglected which care and prudence could suggest or provide for this emergency. In fact |405] all the resources at my disposal or discretion *have been ex- hausted, and I may say, without egotism, at least energetically, if not wisely. I am: m.T, very respectfully, rour obedient servant, JAMES E. HAEVEY. Hon. William H. Sewaed, Secretary ef 8ta:te. 74 TREATY OF WASHINGTON— PAPERS ACCOMPANYING . Mr. Harvey, United States minister, to Mr. Seward, Secretary of State. Legation of the United States, Lisbon, January 2Q, 1864, . Sir : The accompanying copy of a note from the Duke de Soule, in answer to one which 1 addressed to him on the llth instant, in re|pr- CDce to the arming of piratical cruisers in Portuguese ports, was only received last night, though dated on the 16th instant. I have the honor to be, &c., JAMBS E. HAEVEY. Hon. William H. Seward, . Secretary of State. llnclosure.l Dule de loul^, minister of foreign affairs, to Mr. Savvey, United States minister. [Translation.] Department of Foreign Affairs, Lisbon, January 16, 1864. [406] *I have had the honor of receiving the note which you were pleaded to address me under date of the 14th instant, making known to me the information you had received, that the English bark Agrippina was carrying to the Azores a cargo of munitions of war for the supply of confederate cruisers. Being'thus apprised of the contents of your aforesaid note, it is my duty to inform you that under this date, I address the ministers of the interior, finance, war, and navy departments, in order that, with all urgent speed, they may adopt the most energetic measures to prevent the furnishing of such articles to confederate vessels. I avail myself of this opportunity to renew the assurances of my most distftiguished consideration. » DUKE DE LOUL:fi. James E. Harvey, Esq., t&c, t&c, tfcc. The DuJce de Louie, minister of foreign affairs, to Mr. Harvey, United States minister. » r Translation.] Department of Foreign Affairs, Lisbon, January 23, 1864. [407J With reference to the note which you were *pleased to address me under date of the 14th instant,' requesting that preventive measures might be adopted with regard to the English bark Agrippina, which, according to information, purposed carrying to the Azrtres a cargo of munitions of war for suppl,ying the confederate cruisers, it is my duty to inform you that the minister of the interior has advised me, in his communication of the 20th instant, as haiving forwarded, on that same date, to the civil governors of the district of the Azores aud Ma- deira, aportario, of which a copy will be found inclosed. COUNTER CASE OF THE UNITED STATES. 75 By tlie contents thereof, you will perceive that proper instructions have been furnished to the aforesaid authorities to enable them to thwart the intentions and speculations of all corsairs inimical to the United States. I'hese same orders may, for greater speed, be forwarded by the cor- vette Saint Louis, as you propose, and to this end 1 have the honor of transmitnng the same to you to be sent to their destination. I avail myself of this opportunity to renew the assurance of my m'ost distinguished consideration. DUKE DB LOULE. Jj^ES E. Harvey, &o., &c. [408] *[lDclosnre.] Instructions to the governors of the Azores and Madeira. [Translation.] Ministry of the Interior, Second Department, Lisbon, Royal Palace, January 20, 1864. The inclosed authentic copy of a Jiote from the minister of the United States of America at this court, having made known that the English bark Agrippina contemplates carrying to the Azores a cargo of muni- tions of war for supplying confederate cruisers, which are to go there to receive them, in order to continue their depredations on the com- merce of the United States in the same manner as the aforesaid bark did before in 1862, in the bay of Angra, and it being further made known that the parties implicated in these nefarious undertakings pro- pose to establish a regular depot in one or more of the smaller ports in the said islands, with the view of organizing therein armed expeditions hostile to the aforesaid United States, His Majesty the King desires that a knowledge of the above be communicated to the civil governor of the district of Angra de Heroisrao, and'tordains that, taking into his most serious consideration the contents of the above-mentioned note, and the reclamation therein contained,' the same civil governor shall adopt all such measures as may be necessary to completely [409] *put a stop to the aforesaid designs and intentions on the part of the enemies of said United States ; and for this purpose he is to co-operate with the directors of custom-houses and captains of ports within the district under his charge, so as to act with a mutual accord, to whicj) effect orders, with strong recommendation, have been sent to them through the respective departments. An immediate account is to be rendered, through the department, of all that may be done or put into practice on this subject, with the understanding that His Majesty makep the civil governor and his subordinates responsible for afly neglect or omission in such a grave and delicate affair. DUKE DB' LOULfi. True copy. OLYMnO JOAQUllSr DE OLIVERIA. Department of Foreign Affairs, January 23, 1864. True copy : EMILIO ACHILLES MONTEVEEDE. 76 TEEATY OF WASHINGTON-^PAPEES . ACCOMPANYING Tlw Dtilre de LouU, minister of foreign uffairs, to Mr. Harvey, minister of the United States. [Tracs'.ation.] DEPARTMENT OP FOREIGN AFFAIRS, JanvM-y 2% 1864. Iti addition to my note of this day's date, I have the honor of inform- ing you that through the navy department the most positive [ilOJ orders have been trans*mitted to all the authorities dependent on the said department, in the sense of your note addressed to me under date of the 14th Instant, and that probably a man-of-war*will start for the Azores to aid the aforesaid authorities. I avail of this opportunity to renew the assurances of my most dis- tinguished consideration. DUKE DE LOULfi. James E. Harvey, Esq. Mr. Harvey, United States minister, to the DuTce de Louie, minister of foreign affairs. Legation of the United States, Lisbon, January 25, 1864. Sir : 1 have had the honor to receive your note of the 23d instant, communicating a copy of a portario, addressed to the civil governors of the Azores and Madeira, founded upon representafcioii's made by me in reference to the designs and movements of certain piratical cruisers, reported as intending to rendezvous and equip at the islaud possessioliS of His Majesty against the commerce of the United States. It is my duty and pleasure to say that the instructions contained in that portario are consistent with the friendship and good feeling which has so long and happily subsisted between Portugal and the United States, and which it is to be hoped may not only be still longet {411] continued, but united even more closely *and strongly. The United States ship St. Louis sailed yesterday for the Azores direct, intending subsequently to touch at Madeira. Her com- mander is charged to deliver, personally, the dispatches to the various authorities at the islands, which your excellency, at my suggestion, ad- dressed to my care. I avail myself of this opportunity to tender the assurances of my most distinguished consideration. JAMES E. HAEyET. His Excellency the Duke de Loui.:fe, Minister and Secretary of State for Foreign Affairs. Mr. Harvey, United States minister, to Mr. Seward, Secretary of State. [Extract.] Legation of the United States, Lisbon, January 30, 1864. Sir: The Duke de Loul6 addressed me a fourth note, (of which a copy in translation is inclosed,) yesterday, on the subject of my recent repre- COUNTEK CASE OP THE UNITED STATES. 77 sentatiou, amd from which it appears that the entire authority of every department of His Majesty's government has now been seriously and energetically invoked to prevent rebel cruisers from arming or equipping •in the island ports of this kingdom. I have the honor to be, &c., JAMES E. HARVEY. Hon. William H. Sewaed, iHecretavy of State. [412] * Tlw Iktke de Louie, minister of foreign^ afiai'rs, to Mr. Harvey,. United States minister. * [Translation.] -Depaetment op Foreign Affairs, January 29, 1864. I have the honor of informing you, in addition to my notes of the 23d instant, that the minister of finance informs me, in a communication of the 20th instant, that on .the same day the most positive orders were being sent to the directors of custom-houses in the Azores Islands, to the effect of their adopting, under the severest responsibility, all such measures as may be within their reech, to prevent confederate vessels from supplying themselves with munitions of war in the custom-ports of said archipelago. It is my duty further to inform you that the minister of war has adviaed me under that same date that, notwithstanding the orders already transmitted to. the general commanding the tenth* military division, which were communicated to you on the 2d December, 1862, he now again recommends the afor«said general to employ the utmost vigilance, and to give his most positive orders, so as, by co-operating with all the other local authorities, to frustrate all plans and attempts of. the confederates, and thus maintain a rigorous compliance with the decree of July 29, 1861. I renew on this occasion the assurances of my most distinguished consideration. DUKE DE LOULfi. James E. Harvey, Esq. [413J *Mr. Harveyj United States minister, to Mr. Seward, Secretary of State. liR&ATWn OF THE UNITED STATES, Lisbon, February 2, 1864. SsR : I transmit herewith a copy of a note (in translation) which th'e Duke de Soute has addressed to me, stating the Portuguese war-steamer MindeUoh.aid been dispatched to the Azores to carry out practicgJly the recent assurances of His Majesty's government of an intention to pre- vent the arming or equipment ot piratical cruisers in Portuguese ports against the commerce of the: United States. 1 have the honor to, be,, &c.,, JAMES E. HAEVEY. Hon. Wm. H. Sewaed, Secretary of State. * 78 TEEATY OF WASHINGTON PAPERS ACCOMPANYING Tlw Duke de Louie, minister of foreign affairs, to Mr. Harvey, United States minister. [Translation,] Department op Foeeign Affairs, January 29, 1864 In addition to the notes addressed you ou the 23d and 26th instant, I have now the honor to inform you that on the 26th instant the Portu- guese steamer of war Mindello left this port bound for the Azores, in order to- superintend the execution of the orders transmitted to the respective authorities regarding the punctual compliance with [414] the decree *of July 29, 1863. ,„r~, K*^ I renew on this occasion the assurances of my distinguished consideration. DUKE DE LOULfi. James E. Harvey, Esq. No. 3.— limitation OF ASYLUM TO THE FLORIDA AT FUNCHAL. Mr. Harvey, United States minister, to Mr. Seward, Secretary of State. Legation of the United States, Lisbon, May 24, 1864. Sir :' I transmit herewith translations of various correspondence be- tween the authorities of the island of Madeira, the commander of the rebel cruiser Florida, and the United States vice-consul, in reference to the supplies which were furnished to the Florida at Funchal in February last. I have the honor to be, &c., JAMES E. HAEVEY. Hon. Wm. H. Seward, Secretary of State. [415] ■ *[Inclosure.] Governor Perdigao to the captain of the port of Funchal. ' ' [Translation.] Civil. Government of Funchal, February 28, 1864. Most Excellent Sir : I have just been informed, by an official com- munication from yourself, that the ship Florida, a South American corsair, sailing under the so-called flag of the Confederate States, which have not' been recognized by us, has entered and is now at anchor in this port. * In view of the decree of the 29th July, 1861, a vessel in those circum- stances can only enter the ports of Portugal when compelled thereto by • force majeure; and as such case has not happened, nor is it invoked by the commander of said vessel to legalize or justify his stay in this port I fliid myself compelled, in conformity to the law, and in obedience to all COUNTEK CASE OF THE UNITED STATES. 79 those priacipTes of loyalty -which are due to the flag of a friendly nation, torequest that your excellency will be pleased to intimate to the afore- said commander to leave this port, with all possible speed. Your excellency will be pleased to keep me informed of all that may occur in carrying ont the present commission. God preserve your excellency. The civil governor, * JAOINTHO ANTONIO PBEBIGAO. His Excellency the Captain Of the Port of Funchal. 1416] *j;iDclosnre.] ■ The captain of the port of Funchal to Governor Perdigao. 4 [Translation. J Funchal, February 28, 1864.- MosT Excellent Sir : In compliance with the orders received from jour excellency, I have intimated to the commander of the war-steamer Florida to leave this port within twenty-four hours, and in- reply to said intimation I have received from said officer a communication, of which I have the honor of transmitting a co|>y to your excellency, wherein the said commander declares he was forced to come into this port in want of water, bread, and coals, and that consequently it is impossible for him to quit this por^ without those articles. Your excellency will decide whatever is just, and I await your excellency's orders on this head. God preserve your excellency. JOAQUIN PEDRO DB OASTELBRANCO, Post- Captain B.N.,and Captain of the Port. His Excellency Dn. Jacintho Antonio Perdigao, Civil Governor ^f the Funchal Bistrict. [luclosure.] Lieutenant Morris to the captain of the- port. Confederate States Steamer Florida, Off Funchal, February 28, 1864. {417] *SiR : In answer to your request that I should leave this port immediately, I have to state tliat it is utterly impossible to com- ply. I would state that 1 arrived here last night at 11 o'clock, and am out of coal, and require water and bread, and do hereby enter my pro- test against being forced to leave without the above-mentioned neces- saries, and must decline doing so. Slionld any mishap befall this vessel while ont of fuel, your government will be res|)()nsible for the same. It is actually necessary to have coal, not pnly ,tior: the i)ari)ose of propelling the vessel, but also to make fresh water, as this vessel carries a very 80 TREATY OF WASHrKGTON— ^PAPERS ACCOMPANYING small quantity of the latter. I only ask for what the English, French,, Spanish, and Brazilian governments,, and also your own government,. have already granted to our vessels. I have the honor to be your most obedient servant^ (J. MAEUGAULT MGRBIS, Lieutenant Cammandmg. Captain Joaquin Pedeo be Castelbeanco, Captain of the Port of Funchal, &c. [Inolosure.] Captain of the port to Governor Perdigao. [Translation.] .FuNCHAL, February 29, 1864. [418] Most Excellent Sie : I communicated your *excellency's order to the commander of the steamer Florida, said orders be- ing to the effect that lie might acquire the provisions and water required to proceed on his voyage, and that with regard to coal, your excellency only allowed him to take twenty tons. In reply I have this day received a communication from said officer, of which I have the honor of transmitting you a copy inclosed, wherein said commander states he cannot proceed on his voyage without taking in forty tons of coal. A short time after my receiving this communication, this officer came to me, and I then made known to him your excellency's positive orders, and be at last agreed to leave this evening, taking only the twenty tons of coals allowed by your excellency, declaring that he would not pro- ceed to sea under these circumstances should any war-steamer of the United States make her appearance in sight at the moment of his leav- ing the port. •God preserve your excellency. JOAQUIN PEDEO DE CASTELBEANCO, Post-Captain and Captain of the Port. His Excellency the Civil GovIbrnoe Of the Funchal District. [Inclosure.] Lieutenant Morris to th& captain of the port. Confederate States Steamee Florida, Funchal, February 29, 1864. [419] *Sir:, Your letter of the 28th instant, in answer to a commu- nication which you received from me of the same date, setting forth the reasons for my not leaving this port, &c., has been received. You istate that his excellency the governor consents to my being sup- plied with bread, water, and twenty tons of coals to enable this vessel to'proceed to the high seas. I will state that 1 require forty tons of coal to reach the nearest port. I am, sir, with much respect, your obedient servant, C. MAEUGAULT MOEEIS, Lievtenant Commanding^ C. 3. N. Joaquin Pedro de Castelbeanco, Captain of the Tort, {fee. COtlNTEB CASE OF THE UNITED STATES. 8l >,: . 1 [luolosure.] Governor Perdigao to the captain of the port. [Translation.] Civil Government of Funchal, February 29, 1864. Most Excellent Sir : On view of your communication, wherein you inform me that you had intimated to the commander of the ship Florida^- South American corsair — to quit this port, and make known his reply, whereby he alleges the existence of force majeure in his being short of pro- visions, water, and coals to navigate, it is my duty to inform you that 1 consider that ship only entitled to protection under the general [420] *laws of humanity ; and I understand that, according to said laws, we need not deny to any one the necessary means of subsistence, and therefore agree to his being furnished with such provisions and water as he may require, but cannot do the same with regard to coals ; whereas said ship being built on the mixed system, and being therefore enabled to navigate by means of her sails, as she no doubt has already done, and as is evident from the fact of her having taken eighteen days in coming from Brest to this port ; and it not being consistent with my duty that she should, within the territory confided to me, be permitted to furnish herself with that article in a greater quantity than what is necessary for her to leave this port, attain such a distance off as not to be prejudiced by the ship of war of the United States which is likewise now -at anchor in this port, and for the purpose of cooking on board, I think that I am only authorized in allowing her to be furnished with twenty tons of coal; which quantity, although not sufficient to put her in a position of causing damage, is nevertheless sufficient to avert any danger to which she might, by chance, be exposed on leaving this port. In this sense your excellency will be pleased to communicate with the commander of the aforesaid corsair and apprise me of the result. God preserve your excellency. [421] *The Civil Governor, JACINTHO ANTONIO PBEDIGAO. His Excellency the Captain Of the Port of Funchal. [Inolosure.] Governor Perdigao to the director of customs. [Translation.] Civil Government oe Funchal, February 29, 1864. : Most Illustrious Sir: Having been informed by the captain of this port that the commander of the ship Florida — South American corsair — now at anchor here, had declared himself unable to leave this port in compliance with the intimation made to him by my orders, seeing that he was in want of provisions, water, and coals ; and I having re- solved that in view of the duties of humanity, which must be extended 6 A— 11 82 TEEATY OF "WASHINGTON — PAPEES ACCOMPANYING to him and which do not compromise other duties, equally sacred, of loyalty toward the flag of a friendly nation, he should be permitted to furnish himself with whatever provisions and water he may require, and with twenty tons of coal, which 1 consider sufficient to enable him to leave this port without danger, and to cook provisions on board, I now inform you hereof in order that you may be pleased to authorize the shipment of the said quantity of coal, and using supervision in not allowing these limits to be exceeded. God preserve you. [422] 'The Civil Governor, JACINTHO AISTTONIO PEEDIGAO. Most Illustrious Directok oe Customs, Funchal. [Inolosure.] Governor Perdigao to the United States consul. [Translation.] Civil Government op Funchal, February 29, 1864. Most Illlustrious Sir : I have the satisfaction of informing you that the commander of the ship Florida (South American corsair) has, according to the communication of the port captain and his own verbal declaration to me, in the presence of two persons, accepted the conces- sion granted to him for furnishing himself with provisions and water which he needs, and twenty tons of coal, the latter having been agreed with you and I having consented thereto, as a sufficient quantity to enable him to leave the port and place himself at such a distance as not to fear his being harmed by the American corvette of war now lying in this port, and for purposes of cooking on board ; and the said commander has compromised to leave this evening, provided that up to the mo- [423] ment of quitting no American war-steamer shall heave in *sight, in which case he desires and requires to keep himself under the pro- tection of the flag in whose watei;S he is now riding at anchor. He, however, has asked me that, following the example of what is done in the ports of other nations, all means might be employed toward obtaining that the United States war-ship in this port may only leave this port twenty- four hours after his departure ; and it being my desire to niaintain com- plete impartiality, thus communicate the same to you, hoping that you will agree with the commander of the American corvette now here, so as to comply with the said request, which I consider reasonable and in harmohy with those principles of equity which are due to all. Be pleased to acknowledge receipt of the present dispatch and to reply thereon as you think fit. God preserve you, The Civil Governor, JACIKTHO ANTONIO PEEDIGAO. Most Illustrious Vice-Consul of the United States. COUNTER CASE OP THE UNITED STATES. 83 [434] *[Inolosure.] The captain of the port to Governor Perdigao. [Translation.] FuNCHAL, March 1, 1864. Most Excellent Sir : I have the honor of informing your excel- lency that the American steamer Florida left the port last night, about 8.30 p. m., having received the provisions and water which she desired and the twenty tons of coals which your excellency permitted her to take. God preserve your excellency. JOAQUIN PEJDRO DE CASTELBEANCO, Post-Captain B. A. and Captain of the Port. His Excellency Don Jacintho Antonio Perdigao, Civil Governor of the District of Funchal, 'No. 4.— CASE OF THE STONEWALL AT LISBON. Mr. Harvey, United States minister, to Mr. Seward, Secretary of State. Legation op the United States, Lisbon, March 28, 1865. Sir: I have the honor to inform you that the rebel cruiser [425] Stonewall, a most formidable iron-clad ship, *entered this port on Sunday evening, the 26th instant, having left Ferrol the pre- vious day. As the flag which was flaunted from her mast-head was en- tirely unknown here, and somewhat resembles that of the Eussian service, she was generally supposed to belong to that navy ; and, in fact, the real character of the vessel was not ascertained positively until the next morning, when certain individuals, calling themselves officers, published their disloyalty in the streets in gray uniform and arrogant language. As soon as I was informed of the identity of the craft, immediate steps were taken, personally, to have her ordered out of port, and they were followed later in the day by a formal note to Duke de Loul6, now inclosed, (marked A,) which will explain itself. Assurances were given without hesitation that the vessel would be required to depart within twenty-four hours ; and I have occasion to know that the orders were at once made, and the notice officially com- municated to the Stonewall. Large inducements were held out to procure enlistments in Lisbon. As much as £10 sterling monthly wages, and £15 bounty were offered, but only one misguided and dissipated victim was secured, and he by a process of kidnapping. The fact only came to light too late to be visited with the penalty which I should certainly have assisted in see- ing enforced. [426] *I also communicate herewith, marked E, a copy in translation of the note of the Duke de Loul6, in reply to mine of yester- day's date. These papers and this general statement concerning the cruiser Stone- Vail since her presence in the Tagus will enable the President and the Department to appreciate understandingly the official proceedings which were adopted to meet an exceptional and vexatious emergency. I have the honor to be, sir, your obedient servant, JAMES E. HAEVEY. Hon. Wm. H. Seward, . Secretary of State. 84 TEEATY OF WASHINGTON — ^PAPERS ACCOMPANYING Dulce de LouU, minister of foreign affairs, to Mr. Earvey, CTnited States: minister. Department op State por Foreicjn Affairs, March 28, 1865. Sir : I received the note which you were pleased to address me, tinder yesterday's date, regarding the entry in this port of the steamer Stone^ wall, wherein, after sundry considerations on this occurrence, you make the following requests : 1. That His Majesty's government shall immediately take the neces- sary steps to order that vessel away. 2. That she be not allowed to receive supplies of coal. 3. That the enlistment of seamen, firemen, or any other individuals be prevented. [427] *In reply I have the honor of informing you that, so soon as His Majesty's government was made aware of the arrival of said ves- sel, and that the cause thereof was the want of coal, intimation was given to the respective commander that on completing his supply, and within twenty-four hours, he should proceed to sea. Said term expired this afternopn. On perceiving this morning that the vessel was still at her anchorage, a naval oflflcer was sent on board to ascertain the reason why she had delayed her starting. The said officer, on his return, stated, that if the Stonewall had not started within the prescribed time, it was ■ owing to her'not having taken in all the coal, and there being to-day fb strong current the commander was afraid that a slight derangement in his capstaji might prevent his weighing anchor ; and the latter further declared that as soon as the current might diminish its intensity he would quit the port, and this he effected about 10.50 a. m. Eegarding the supply of coal, against which you insist, allow me tO' observe th^it the vessel being a steamer His Majesty's government could not avoid, with good foundation, that she should be provided with that article, for the same reason that it could not deny to any sailing-vessel^ in a dismantled state, to provide itself with the needful sails. In reply to your third request, and to what you say regarding the English [428] brig *Fairline and the schooner Merton Castle, which were about sailing for Lisbon with munitions of war, chains, and anchors- supposed to be destined for the Stonewall, I hasten to assure you that His Majesty's government, having greatly at heart not to give any mo- tive which might alter the friendly relations and the good harmony which happily subsists between Portugal and the United States, has not hesitated in adopting all necessary measures, through the depart- ments of marine, interior, and finance, to put a stop to all such plans. I avail myself of this opportunity to renew the assurances of my most distinguished consideration. DUKE DE LOULE. James E. Harvey, Esq., (&c., (&e., &c. [431] *IV.— BEAZIL. CODIGO CRIMINAL. Parte TI. — Dos crimes publicos. Titulo I. — Dos crimes contra a existenoia politica do imperio. Capittjlo I. — Dos crimes contra a independencia, iutegridade e dig- nidade da nagSo. Art. 69. Provocar, directamente e por factos, uma na9ao estrangeir^i. COUNTER CASE OF THE UNITED STATES. 85 a declarar a guerra ao imperio, se tal declaragao se veriflcar e se seguir a guerra : Penas. — No gran maximo, dezoito annos de prisao com trabalho. No gran ni6dio, doze^nnos, idem. No gran minimo, seis annos, idem. Se da provocagao nao se seguir a declara9ao da guerra, ou se este, posto que declarada, se nao veriflcar, flcando a na§ao sem damno ou prejuizo : Penas. — No gran maximo, seis annos de prisao com trabalho. [432] No gran m6dio, quatro annos, idem. No *graQ minimo, dous annos, idem. Se para nao se veriflcar a guerra declarada, em consequencia da pro- vocagao, por preciso algum sarfriflcio da nagao, em prejuizo de sua in- tegridade, dignidade ou interesses : Penas. — No gran maximo, doze annos de prisao com trabalho. No gran m6dio, sete annos e seis mezes, idem. No gran minimo, tres annos, idem. Art. 73. Oommetter, sem ordem ou autorisagao do governo, hostili- dades contra os subditos de outra nagao, de maneira que se comprometta a paz ou provoquem represalias : Penas.— No gran maximo, doze annos de prisao com trabalho. No gran m6dio, seis annos e seis mezes, idem. No gran minimo, um anno, idem. Se, por tal procedimento, algum brasileiro soffrer algum mal, ser4 o r6o considerado autor delle, e punido com as penas correspondentes diem, da sobredita. Art. 74. Violar tratados legitimamente feitos com as nagaoes estran- geiras : Penas. — No gran maximo, seis annos de prisao. No gran [433] m6dio, tres annos e seis mezes, idem. No gran *minimo, um anno, idem. Art. 82. Exercitar pirataria ; e este crime julgar-se ha commettido : § 1". Practicando no mar qualquer aoto de depredagao ou de violencia, quer contra brasileiros ou contra estrangeiros con quem o Brasil nao esteja em guerra; § '2°. Abusando da carta de corso, legitimamente concedida, para prac- ticar hostilidades, ou contra navios brasileiros ou de outras nagoes, que nao fosse autorisado para hostilisar ; Penas. — No gran maximo, gal6s perpetuas. No gran m6dio, vinte an- nos de prisao com trabalho. No gran minimo, dez annos, idem. § 6°. Aceitaudo carta de corso de um governo estrangeiro sem compe- tente autorisagao : Penas. — No gran maximo, oito annos de prisao com trabalho. No gran m6dio, cinco annos, idem. No gran minimo, dous annos, idem. Art. 84. Tambem commetter4 crime de pirataria : § 1", O que flzer parte de qualquer embarcagao que navegue armada, sem ter passaporte, matricula da equipagem ou outros documentos [434] que provem a *legitimidade da viagem : Penas ao commandante.—So gran maximo, desezeis annos de prisao com trabalho. No gran m6dio, dez annos, idem.. No gran mi- nimo, quatro annos, idem. Penas a equipagem. — No gran maximo, oito annos de prisao com trabal- ho. No gran m^dio, cinco annos, idem. No gran minimo, quatro annos idem.— (Codigo criminal do imperio do Brazil, pelo 'Dr. Carlos Antonio Cordeiro. Rio de Janeiro, 1861.) [For the circular of the Brazilian government in the original, with ne de conduite suivie dans des cas analogues, et que, d^autre part, elle setrouve plus en harinonie avec le sentiment popiilaire. ' . ■ ; La position des neutres a toujours 6te difficile, Le neutre doit d6feudpe son droit, et tenir la balance 6gale entre deux adversaires irrit^s I'un contre I'autre jusqu'a vouloir s'entre-tuer. Gette tadie excede presque. les forces luunaines. Depuis les aucieus temps jusqu'i I'epoque actiiglte: les conibattants ont chercb6 a entrainer daus la lutte nieme les diSBK immortels, et a les attirer de leur c6te. U n'est pas surprenant dfes lors. qu'ils s'efforceut de inettre dans leurs int6r6ts les 6tats neutres, specta- teurs de la lutte, et de s'assurer de ce qu'on appelle leur neutralite "bieuveillante," qui, de I'autre cot^,, est tax6e de neutrality " m.alreilsk ante." La guerre actuelle a inontr6 une fois de plus que les neutres sans exception s'attirent pfeu de reconnaissance. ia neutralite de la Suisse dans cette guerre ^tait encore en- [512J tour^e de difficult6s toutes *parti<;ulieres. Nos. pins proches voisins se trouvaient en guerre I'un contre I'autre; a])res avoir perdu son caractere dynastique, cette Intte prifc le caractere d'une guerre de races entre deux peuples repr^sentaut justement lea deux principales races dont la Suisse est corapos^e; en outre, elle parut revfitir I'apparence d'une guerre de la r6publique contre la monarcliie, et eHe= prit m6iiie 9a et 14 un caractere confessionnel. II n'est pas surprenant' que daus de telleseirconstances bien des gens en Suisse iiienttrouv^' que leur ]noiire cause 6tait en jeu, que les s.>inpatbies se soient prononc6es avec beaucoupde viva(at(§ suivant le point de vue auquel on se plagait, et que cliez nous les cris dejoie du vainqneur u'aient trouve partbis que de tiesfaibles 6chos. La Suisse a 6t4 souvent expos(5e, 4 ce propos, ^ d'auiersreproclies d'un c6t6 comme de I'autre. L'Allemagne du Sud ne pouvait comprendre pourquoi les Suisses alleinands ii'accueiiiaient pas avec une joie 6gale a la sienne la d^faite de la. France; et Garibaldi s'expriniait assez dnremeut sur le fait que la Suisse ne portait pas secours k la nation fran(;aise. Nous savons respecter ces sentiments, mais on doit aussi etre juste vis 4-vis de la Suisse. La Suisse a fait de cruelles exi)6riences jusqu'a ce qu'elle se soitfamiliaris6e avec I'idee de ne [513J plus se meler des querelles du *dehors ; elleachoisielle-mSmela politique de la neutrality longte'mps avant que l'Euro])e eut jug6 4 propos de sanctionner cette politique. Justement parce qu'elle est par- tag6e quant aux races, aux religious et aux int(5r6ts, elle ne pent inter- veuir activeuient daus les guerres entre les autres 6tats sans provoquer de profondes deuliirnres daus son propre seiu et sans paralyser ses forces, tandis qu'elle est forte dans la guerre defensive, parce que tons les ele- ments qui la composent se reunissent contre I'ennemi du dehors. La politique de la neutralite n'est done point une lot imposee k la Suisse par Vetranger; elle est bien plutdt la consequence de son organisation int6rieuie. O'est pourquoi la Suisse a dans cette guerre manifeste le caractfetej particulier de sa natioualite en restaut neutre. Mais elle n'a pas ete un" simple spectateur oisif et curieux de cette grande lutte ; par son inter- vention diplomatique pour I'adoption des articles additiounels a la con- vention de Geneve, par I'envoi d'un grand uombre de ses mSdecins sur les champs de bataille, par le sola qu'elle a pris des blesses des deux nations bclligerantes et par les secours qu'elle a dounes simultan6- COUNTER CASE OP THE UNITED STATES. ■ 113 [514] ment aux AUemands expuls6s et aux Strasbourgeois, elle a *montr6 qu'elle prenait une part active aux souffrances de ses voisins et elle a prouv6 qu'elle savait remplir ses devoirs d'etat neutre, non-seule- ment avec loyaut6, mais encore avec humanity. La Suisse neutre a eu, elle aussi, sa mission dans cette guerre. II serait absurde de voulqir contester, au point de vue de la formation des 6tats, I'importance du pfincipe de la nationality, bas6 sur la diff(5rence des races. Oe principe se fonde sur la nature meme, et se trouve, par con- sequent, justifl6. Mais il est certain, d'autre part, qije les diverses races ne doivent pas n6cessaireinent vivre ensemble dans un 6tat d'antago- nisme, mais qu'au contraire, en se r^unissant dans la liberty elles se com- plfetent les unes par les autres, et qu'en definitive, au-dessus de la diffe- rence des races, il y a la communaute de la nature huniaine. Oes der- nieres v6rites seront de plus en plus gen6ralement reconnues ^ mesure que la civilisation fera des pas en avant. En attendant, la Suisse, dont cette union des races est le caractfere essentiel, a le devoir de veiller au maintien de son principe et de le faire pr^valoir d'une manifere digne au milieu des guerres de races ; partout ou. elle le pent, elle doit s'eiforcer de frayer la route i des appreciations plus humaines sur le [515, 516] terrain du droit des gens. G'est dans ce sens que le conseil ♦fe- deral a compris la mission que la Suisse avait a remplir, et o'est k ce point de vue qu'il desire voir juger ses actes. Le conseil federal espfere que la Suisse pourra maintenir intacte sa position jusqu'^ la fin de cette guerre terrible; et en exprimant ^ I'as- sembiee federale sa gratitude pour la confiance qu'elle lui a accordee lorsqu'elle liii a confere des pouvoirs extraordinaires, le conseil federal saisit cette occasion, monsieur le president et messieurs, pour vous re- nouveler I'assurance de sa haute consideration. Berne, le 1^'' d6cembre 1870. Au nom du conseil federal Suisse. Le President de la Confederation, Dr. J. DUBS. Le Chancelier de la Confederation, SOHIESS. 8 A— II [517,518] ADDITIONAL MEMORANDA TOUCHING NEUTRALITY LAWS AND THE EXECUTION THEREOF IN COUNTRIES OTHER THAN THE UNITED STATES AND GREAT BRITAIN. [519] *VII.— D E In M A E K. :So. 1. Ordinance of May 4, 1803. 'So. 2. Circular, May 20, 1823. No. 3. Letter, April 20, 1854. No. 4. Notice, July 25, 1870. No. 5. General instructions. No. 6. Extracts from penal code. No. 7. Law of registration, 1867. No. 1.— OEDONNANCE DU EOI, POUR EfiGLER LA CONDUITE ET FIXER LES OBLIGATIONS DE8 COMMEECANTS ET GENS DE MER DE SES ETATS EN TEMPS DE GUERRE ENTRE D'AUTRES PUISSANCES MARITIMES, (LE 4 MAI , 1803.) Nous, Chretien Sept, par la grace de Dieu Roi de Dannemarc & de Norv6gue, &c., &c., k tons ceux qu'il appartiendra : [520] Quoique les regies d'aprfes lesquelles les commer*9ants et gens de mer, nos sujets, doivent se conduire en temps de guerre entre d'autres puissances maritimes, soient d^termin^es par plusieurs de nos ordonnances ant6rieures, nous avons n6anmoins jug6 n^cessaire, dans les circonstances actuelles, d'exposer dans une seule ordonnance le contenu de ces reglements, modifi6 a plusieurs 6gards, et tel qu'il devra dor^navant servir de rfegle, afln que par la pr^sente la plus grande publicity soit donn^e aux principes invariables, d'apres lesquels nous entendons main- tenir en tout temps les droits des commer9ants et gens de mer de nos 6tats, et que personne ne puisse pr^tendre cause d'ignorance relative- ment- aux devoirs qu'il aura a remplir comme gujet danois dans un cas semblable. En consequence, c'est notre volont6 royale que le, rfeglement suivant soit dor6navant ponctuellement observe comme la seule regie de leur conduite par tous ceux qui voudront prendre part aux avantages que la neutrality de notre pavilion, en temps de guerre, assure au com- merce et k la navigation legitime de nos sujets; k ces causes, r^voquant par la pr6sente nos ordonnances ant^rieures relativement a la conduite de nos dits sujets pendant une guerre maritime 6trangere, nous ordon- nous et publions ce qui suit : Art. 1. Quiconque des commergants ou gensde merde nos ^tatsvoudra faire partir un vaisseau k lui appartenant, pour quelque port ou [521] place stranger,- sur laquelle I'effet d'une *guerre survenue entre d'autres puissances maritimes pourra s'6tendre, sera tenu de se procurer un passeport royal en latin, et les^autres papiers et actes requis pour l'exp6dition legitime d'un navire. A cette fin nos sujets seront avertis, au commencem ent d'une pareille guerre, pour quels ports ou places Strangers on aura jug6 n6cessaire que leurs navires soient pourvus de nptre passeport royal en latin. Art. 2. Oe passeport ne pourra 6tre d61ivr6 au propri^taire du vais- seau qu'aprfes qu'il aura obtenu le certiflcat qui constate sa propri6t6. Art. 3. Pour obtenir le certiflcat ordonn6 par Particle pr6c6dent, il faut 6tre notre sujet, n6 dans nos 6tats, ou avoir aquis, avant le com- mencement des liostilit^s' entre quelques puissances maritimes de I'Europe, la jouissance complete de tous les droits de sujet domicilii, soit de nos pays, soit de quelqu'autre 6tat neutre. Le propri^taire du navire 118 TREATY OF WASHINGTON PAPERS ACCOMPANYING pour lequel on demande le certificat devra, dans tons les cas, resider dans quolque endroit de nos royaumes on des pays a nous appartenants. Akx. 4. II faudra, pour se procurer le certificat ci-dessus 6nonc6, se presenter pardevant le magistrat de la ville ou place maritime d'ou I'on exp(§die le navire, ou bien du lieu de la residence de la plupart [522] des propri^taires ; *ceux-ci seront tenus de certifier ou tous per- sonnellement, soit par serment de vive-voix, soit par formule de serment 6crite et sign^e de leur propre main, ou du moins le propri^- taire principal au nom de tous, que le navire est vraiment a eux, tous ensemble nos sujets, appartenant, & qu'il n'a a son bord aucune cori- trebande de guerre qui soit pour le compte des puissances bellig6- rantes ou pour celui de leurs sujets. Art. 5. Durant le cours d'une guerre maritime 6trangere personne n6e sujet d'une des puissances qui s'y trouvent impliqu6es ne pourra etre capitaine d'un batiment marchand naviguant sous notre passeport royal, k moins qu'il n'ait justifi6 d'avoir acquis le droit de burgeoisie dans nos royaumes ou pays, avant le commencement des liostilit6s. Art. 6. Tout capitaine marcband qui vent etre admis ^ conduire un navire muni de notre passeport royal doit avoir acquis le droit de bour- geoisie quelque part dans nos 6tats. Sa lettre de bourgeoisie devra etre en tout temps ^ bord de son navire. Avant son depart du port oii le passeport lui aura 6te remis, il sera tenu de preter serment, suivant la formule prescrite, qu'4 son su & de sa volenti il ne sera rien commis ou entrepris relativement au dit navire qui puisse entrainer quelqae [523] abus des passeports et certificats qui lui ont 6t6 d^livx^s. *L'acte de serment sera envoy6 au d^partement, competent, avec la requite pour la d^livrance des passeports J Mais en cas que cela. ne puisse deffectuer pa,T raison s 'absence du capitaine, le propri6taire du navire sera tenu d'en donner connaissance au dit d6partement, & notre consul ou commissaire de commerce dans le district on le capitaine se trouve pourvoira sous sa responsabilite d, ce qu'en recevant le passeport il pr6te le serment ordonn6. Art. 7. II ne doit se trouver a bord des navires munis du passeport ci-dessus ordonn6 aucun subr^cargue, facteur, commis ni autre offlcier de navire sujet d'une puissance en guerre. Art. 8. La moiti6 de I'^quipage des navires ci-dessus specifies, y com- pris les maitres & contre-maltres, sera compos6 de gens du pays. S'il arrive que l'6quipage d'un navire devienne incomplet en pays stranger par desertion, mort ou maladie, & que le capitaine soit dans I'impossi- bilit6 de se conformer a la regie susdite, il lui sera permis d'engager au- tant de sujets strangers, & de pr6f6rence ceux des pays neutres, qu'il eu aura besoin pour continuer son voyage ; de maniere, cependant, que le nombredes sujets d'ane puissance en guerre qui se trouveront S, bord du navire n'excede en. aucun cas le tiers du nombre entier de [524] l'6quipage. Chaque cbangement *qui y aura lieu, le capitaine sera obligcS de le faire insurer, avec explication des causes qui I'ont rendu n6cessaire, dans le rdle d'6quipage appartenant au navire, lequel r61e sera dument attests par le consul ou commissaire de com- merce, ou son d616gu6, dans le premier port oil le navire entrera, pour que cette attestation puisse servir de legitimation au capitaine partout oil besoin sera. • Art. 9. Les actes et documents ci-apres specifies devront toujours 6tre ^ bord des navires pourvus de notre passeport royal, savoir : Le certificat ordonn6 par I'article 2 ; La lettre de construction, &, si le navire n'fi pas et6 construit pour compte du proprietaire actuel, il y sera joint le contrat de vente ou let- COUNTER CASE OF THE UNITED STATES. 119 tre d'acliat. Le premier de ces deux aictes et le second, s'il a eu lieu, accompagneront la requSte de I'armateur pour obtenir le passeport ; Le passeport royal en latin, avec les traductions y appartenantes ; -~ La lettre de jaugeage ; • Le r61e d'6quipage,>dument v^rifle par les ofificiers d. ce comp^tents ; Les 'charteparties & les connaissemens concernant la cargaison : & enfin I'attestation du bureau de douane etaWi sur les lieux ou elle a 6t6 prise. [525] Art. 10. La lettre de jaugeage sera exp^diee par des *oii8ciers,ii ce constitues dans les places maritimes de nos royaumes et pays. En cas qu'tin de nos sujets ait achet6 un navire en quelque port stran- ger, notre consul ou commissaire de commerce sur le lieu sera autorisS d, pourvoir au jaugeage & a expSdier au capitaine une lettre de jaugeage provisoire, laquelle sera r6put6e valable jusqu'tl ce que le navire arrive & quelque port de nos Stats, oti il sera jaug6 et marquS en due forme, apr^s quoi il sera expSdiS, dans la forme ordinaire, une lettre de jaugeage, qui par la suite fera partie des papiers de mer appartenant au navire. . Art. 11. II est dSfendu it: tout armateur d'acquSrir, et a tout capitaine d'avoir &, son bord, des papiers de mer doubles ; il n'y sera point arbor6 de pavilion Stranger pendant que le navire poursuivra son voyage avec les papiers & actes par nous accordes d, cet effet. Art. 12. If otre passeport royal n'est valable que pour un seul voy- age— c'est-^-dire, depuis le temps que le navire, apres en avoir Ste pour- vu, aura quittS le port d'oii il est expSdiS, jusqu'^ son retour au mfime port; bien entendu que dans I'intervalle'il n'aura pas changS de propriStaire ; auquel cas I'acquSreur sera tenu de se procurer sous son nom les papiers et documents necessaires. [526] *Art. 13. Comme d'apres les principes genSralement etablis, il ne saurait §tre permis aux sujets d'une puissance neutre de transporter, par le moyen de leurs navires, des marcliandises qui se- raient rSputSs contrebande de guerre, si elles etaient destinSes pour les ports d'une puissance belligSrante ou qu'elles appartinssent ^ ses su- jets, nous avons jugS convenable de fixer expressSment ce qui devra 6tre compris sous la denomination de contrebande de guerre, afln de prSvenir qu'il ne soit abuse de notre pavilion pour couvrir le transport des articles dSfendus, & pour que personne ne puisse allSguer cause d'iguorance k ce sujet. Nous dSclarons, en consequence, que les ar- ticles & marchandises ci-apr6s SnoncSs seront rSputSs 6tre contrebande de guerre, vis : canons, mortiers, ar mes de toute espece, pistolets, bombes, grenades, boulets, balles, fusils, pierres k feu, meches, poudre, salpfetre, soufre, cuirasses, piques, SpSes, ceinturous, gibernes, selles et brides, en exceptant toutefois la quantitS qui pent 6tre nScessaire pour la dSfense du vaisseau et de ceux qui en composent I'equipage. En outre, resteront en pleine vigueur les engagements positifs con- tractus avec les puissances Strangeres, relativement aux marcliandises & propriStSs dont ces engagements prohibent le transport en temps de guerre ; & sera pour cet efifet dressS un r^glement particular, pour 6tre dSlfvrS d, ehaque armateur quand il recevra notre passeport royal. [527] * Art. 14. En cas qu'un vaisseau destinS pour quelque port neutre prennesa cargaison des marcliandises qui seraient contrebande de guerre si elles Staient destinSes pour un port appartenant ^ quelque puis- sance belligSrante, il ne sufBra pas que le propriStaire et le capitaine ayant pretS le serment ordonne ci-dessus, mais I'affrSteur & le capitaine seront de plus'obligSs de donner conjointement une declaration diffSrente de la declaration gSnerale de douane, dans laquelle seront specifies le genre, la quantit-e et le prix de ces marcliandises. Cette declaration sera veri- 120 TREATY OF WASHINGTON PAPERS ACCOMPANYING fi6e par les officiers de douane a I'endroit d'ou le navire est exp^die, aprfes qnoi I'oflacier de douane 4 ce competent la fera incessamment par- venir ^ notre chambre gen^rale > des douands, pour servir ^ controler & k constater I'arriv^e des marchandises y sp6cili6es, au lieu de leur des- tination y enonc6, a moins que I'arriv^e n'en ait 6t6 empSchee par cap- ture ou d6tention violente, ou par quelque autre accident, de quoi il sera fourni preuve sufflsante. ^Le controle s'effectuera de la maniere qui suit: Le fr6teur de ces marchandises devra fournir une attestation par 6crit de notre consul ou commissaire de commerce, ou de leur fonder des pouvoirs au lieu pour lequel le navire est jlestin6, ou, 'd, leur d6faut, du magistrat competent ou de quelque autre personne publiquement autoris^e et qualifi^e pour cet acte; laquelle attes- tation certiliera .I'arriv^e du vaisseau et le d^cliargement des [528] marcliandises conform^ment ^ la declaration sus-mention6e & *en sera la preuve legale. Cette attestation sera envoy^e a notre college g6n6ral d'economie de commerce aussit6t que le vaisseau sera arriv^ au port pour lequel il est destine, ou bien apres son retour dans uu des ports de nos royaumes. En cas que. cette attes- tation ne soit pas remise dans un d61ai proportionn^ a la longueur du voyage, notre college g^n^ral d'economie et de commerce exigera du fr^teur du navire une declaration, telle qu'il consentirait ^ I'affirmer par serment, portant qu'il n'a regu aucune nouvelle, ni du navire ni dei ces marchandises. Si l'arriv6e du navire et le d^chargement des marchan- dises ci-dessus sp6cifi6es dans un port neutre ue peuvent 6tre prouv6s, et qa'une prise en mer ou quelqu'autrb 6v6nement malheureux n'en soit pas la cause, le fr6teur payera a la caisse de notre colMge g6n6ral d'6conomie et de commerce une amende de vingt rixdales pour chaque last de commerce que porte le navire ; et seront en outre autant I'ar- mateur que le capitaine soumis k Paction flscale conform6ment aux lois. Aet. 15. II est d6fendu k tons capitaiues de navires de faire voile pour un port bloqu6 du c6t6 de la mer par une des puissances en guerre; an contraire, ils devront se conformer strictement aux renseignements qui leur aurorit 6t6donn6s par les magistratscomp6tents relative- [529] ment au blocus de ce port. Eu cas qu'un capitaine, *voulant entrer dans un port dont le blocus ne lui aurait point 6t6 conuu, rencontre quelque vaisseau de haut bord, portaut pavilion de quelque puissance en guerre, dont le commandant I'avertisse que ce port est r6ellement bloqu6, il sera oblig6 de se retirer incessament, et ne tentera en aucune maniere d'y entrer, tant que le blocus n'en sera pas lev6. Akt. 16. 11 ne sera permis k aucun de nos sujets de s'engager au service de quelque corsaire ou armateur en course d'un pays en guerre, ni d'armer lui-meme des batiments pour pareille entreprise, ni d'avoir part ou interfet dans ce genre d'6quipement. Aucun armateur, aucun capitaine, ne doit permettre qu'il soit fait usage de son navire pour transporter des .troupes ou munitions de guerre, de quelle espece que ce puisse 6tre. Au cas qu'un capitaine ne puisse empScher que, poUr pareil service, il soit abus6 de son navire par une force irresistible il sera tenu de protester, d'une maniere solennelle et par acte authentique, centre la violence qu'il n'a pas 6t6 en son pouvoir d'dviter. Art. 17. Lorsqu'un vaisseau, nou convoy6 par une protection mili- taire, sera h616 en mer par, quelque b^timen't arm6 apparteuant [530] ^ une des puissances bellig^rantes, *et qui serait autoris^ 4 de- mander I'inspection des papiers de mer A, bord des vaisseaux marchands, le capitaine n'opposera aucune resistance a cet examen, si le commandant du bS,timent arm(5 annonce I'intention de le faire ; mais il sera, au contraire, oblig(5 d'exhiber fldelement, et sans dissimulation COUNTER CASE OP THE UNITED STATES. 121 quelconque, tons les papiers et actes appartenants tant au navire qu'^ sa cargaison. II est parbillement d^fendu, sous des peines s^veres, tant au capitaine du narire qu'd, ses officiers et Equipage, de jeter a la mer, d^chirer ou retenir aucun des documents Msant partie des papiers rdatifs au navire et a la cargaison, soit avant la visite, soit pendant qu'elle se fera. Dans le cas que nous aurions accords au commerce une protection arm6e,sous notre pavilion, alors les capitaines marchands qui d6sireront d'etre re9us sous convoi seront tenus pr6alablement d'eshiber leurs papiers de iner au chef du convoi, et de se r^gler en tout d'apr^s ses ordres. Art. 18. Tout armateur ou capitaine qui contreviendra, en tout ou en partie, aux articles et regies de cette ordonnance, sera d6cliu de son droit de bourgeoisie et de commerce maritime, et en outre soumis h Taction fiscale conform6ment aux lois, et puni d'apres la quality du d6-lit, soit [531] comme parjure, *soit comme infracteur des ordonnances royales. Notre intention royale, au contraire, est de prot^ger et maintenir les droits de tous noscherset fideles sujets qui se conformeront strictement aux regies ci-dessus dans leur commerce et navigation legitime. En consequence, nous avons ordoun^ k tous nos ministres, consuls et autres agents en pays strangers d'employer leurs soins les plus actifs k ce qu'ils ne soient ni vex6s ni molest6s, et, s'ils le sont, de leur aider 4 obtenir justice et le redressement de leurs griefs. Promettons en outre d'appuyer toute reclamation fondle qu'ils se trouveront dans le cas de nous faire humblement exposer. Donn6e k Oopenhague, le 4 mai 1803, sous notre main et sceau. CHRETIEN, E. [L. s.] SCHIMMETMANN-SCHESTEDT. [5321 *No. 2.— CHANCERY-CIRCULAR, BY WHICH PRIVATEERS ARE FOR- ^ BIDDEN TO STAY IN DANISH HARBORS AND WATERS OR SELL THEIR PRIZES IN DENMARK. The royal department for foreign affairs has informed the chancery that it has pleased His Majesty, on the 13th of last month, to resolve as follows: Privateers of whatsoever nation are forbidden to Stay in the Danish har- bors and waters ; in case only when such privateers are forced by evident danger, occasioned either by storms or a pursuing enemy, to seek their only refuge in these harbors, are they allowed to be received there and obtain the assistance which humanity requires; but they are enjoined, as soon as the danger is past, to go to sea. again. No privateer is allowed to send her prizes to Denmark or to sell them there ; nay, even in the above-mentioned case, when privateers in a state of distress enter into Danish harbors, are they forbidden to discharge or reload the prizes they may have brought, or sell them or their cargoes, either in retail or wholesale. For this reason His Majesty's subjects are strictly forbidden to purchase the prizes of foreign privateers. When foreign ships of war enter into Danish harbors, they are [533] allowed to take with them into *the ports the prizes they may have taken, but they are obliged to take them out with them again ; and they are forbidden at the same time to discharge or reload them, or sell them or their cargoes, either in retail or wholesale, Copenhagen, 3Iay 20, 1823. 122 TliEATY OF WASHINGTON PAPERS ACCOMPANYING No. 3.-LETTRE PATENTE CONCERNANT LA RENTRfiE EN VIGUEUR DE ' L'ORDONNANCE ROYALE DU 4 MAI 1803, POUR REGLER LA CONDUITE DES COMMERCANTS ET GENS DE MER EN TEMPS DE GUERRE ENTEE - D'AUTRES PUISSANCES MARITIMES, ETC. [Aveo une annexe.] Sa Majeste le Eoi a, e. d. du 11 d. c, autoriso le miuistere soussigrie it rappeler'a la in6moire de ses sujets les dispositions de I'ordonuance du 4 mai 1803, ayant pour objet de r^gler la conduite des cominergants et gens de mer en temps de guerre entre d'autres puissances luaritimes, et a leur faire savoir egalement que, vu la guerre qui va probablement eclater, la dite ordounance rentrera en vigueur sur chaque point des • '(■■tats de sa Majeste a partir du jour ou la preseute lettre patente y aura 6te publi^e. [534] Or, le Eoi ayant reconnu necessairedesup*pleer a quelqnesunes des dispositions de cette ordounance, qui n'ont qu'uu caractere gene- ral, sa Majeste a aussi voulu des a present faire douner pr^alablement a ses sujets quelques indications qui les metteut a meme de juger quelle est la conduite qu'ils auront h tenir pour se conformer cOnsciencieusement, comme ils le doivent, dans le meme esprit et exactement de la meme maniere que le Eoi et sou gouveruement le feront, tant en g6n6ral aux stipulations des trait^s applicables au cas de guerre dont il s'agit qu'a la d(§claratiou de neutralite communiquee par ordre du Eoi k plusieurs puissances etrangeres, et nomm^ment aux puissances 6veiituellement bellig6rantes, par la note circulaire dont un extrait se trouve ci-joint eu traduction. t Par consequent, le ministere soussigue a egalement ete charge de faire savoir a tous, et de reconimander a leur attention la plus particu- liere, ce qui suit: § 1. En ce qui concerne Particle 1 de I'ordonuance du 4 mai 1803, 1'on est averti jiar la presente que les passeports royaux en latin y menti- onn^s sont requis pour tous les voyages, ^ I'exception toutefois de ceux - qui, ayant pour point de depart un port de I'int^rieur et pour destina- tion un autre port de la mouarchie danoise, sont entrepris dans [535] la Balti*que, le Kattegat et la Mer du Nord, ou bieu qui ont lieu dans la Baltique et le Kattegat entre des ports da-nois et des ports ueutres. Quoique le passeport royal eu latin ne soit valable que pour uu seul voyage — c.-4-d., depuis le temps ou le navire, apres en avoir 6t6 pourvu, aura quitt6 le port d'ou il est exp6di6, jusqu'a son retour, (ordonn. du 4 mai 1803, art. 12) — il pourra cependant, selon les circonstances, fetre re- nouvel6 moyennant une simple attestation. Par les colleges mentionn^s^i Particle 9 de I'ordonuance du 4 mai 1803, on devra comprendre les ministSres respectifs, et quand I'article 14 de I'ordonnance fait mention du college g6n6ral d'^conomie et de commerce, on entendra par 1^ le ministere des affaires etrangeres ; Egalement le ministere des finances est a substituer k la chambre gln^rale des douanes, nomm6e dans le meme article. Le passeport royal en latin s'exp^die au ministere des affaires etran- geres, et jusqu'a ce qu'il en soit autrement ordonn6, gratuitement. § 2. Outre les objets6num6res ^ I'article 13 de I'ordonuance du 4 mai 1803, il faut encore entendre par contrebande de guerre toutes fabrica- tions pouvant servir directement £i I'usage de la guerre. Pour [536] *le cas que des changements ou additions devraieut 6tre introduits ^ I'^gard de la d6anition des objets de contrebande de guerre par suite de stipulations sp6ciales entre le Eoi et d'autres puissances, le ministere se reserve de faire connaitreles decisions eventuelles de sa Majeste. COUNTER CASE OF THE UNITED STATES. 123 ■' § 3. En consequence cles dispositions des trait^s en rigueur, (traits avec la Grande-Bretagne du 11 juillet 1670, art. 3, et article explicatoire, du ^ juillet 1780,) ainsi qu'en conformity de la declaration de neu- trality du Eoi, (voir I'annexe, 1",) il n'est pas permis aux sujets de sa Majeste d'entrer au service des puissances belli g^r antes, en quelque quality que ce soit, ni dans leurs armies, nidansleurs marines, ni plus specialement d'entrependre le pilotage des navires de guerre ou de transport de ces puissances en dehors des parages dans lesquels le pi- lotage se fait par des pilotes autoris6s par le gouvernement. ■'Les dispositions qui precedent sont port^es par la pr6seute d, la con- naissance de tons ceux que cela regarde, pour leur information et pour leur servir de gouverne. Oopenhague, au ministere des affaires etraugeres, ce 20 avril 1854. BLUHME. [537] 'ANNEXE. Extrait de la note circulaire contenant la declaration de neutralite du roi. Le systeme que sa Majesty le Eoi de- Danemarck; entend suivre et ap- pliqaer invariablement est celui d'une stricte neutrality, fondle sur la loyaute, ljimparfcialit6 et un 6gal respect pour les droits de tontes les puis- sances. Cette neutralit6 (selon les vues uniformes des deux cours^) imposerait au gouvernement de sa Majesty le Eoi de Danemarck des obligatidns et lui assurerait les avantages suivants : 1°. De s'abstenir, pendant la lutte qui pourrait s'engager, de toute par- ticipation, directe ou indirecte, en faveur d'une des parties contendantes au detriment de I'autre ; 2". D'admettre dans les ports de la monarchie les batiments de guerre et de commerce des parties bellig6rantes, le gouvernement se r^servant toutefois la faculty d'interdire aux premiers, ainsi qu'aux navires de transport appartenant aux flottes respectives des puissances bellig6- rantes, l'entr6e du port de Christianso ; Les rfeglements sanitaires et de police que les circonstances auraient rendu ou pourraient rendre necessaires devront naturellement 6tre ob- serves et respect^s. Les corsaires ne seront pas admis dans les [538] ports ni *tol6r6s sur les rades des 6tats de sa Majesty djinoise ; S". D'accorder aux batiments des puissances belligerantes la faculty de se pourvoir, dans les ports de la monarchie, de toutes les den- r6es et marchandises dont ils pourraient avoir besoin, a I'exception des articles r6put6s contrebande de guerre ; 4". D'exclure des ports de la monarchic I'entree— les cas de d^tresse constat^e except^s — ^la condamnation et la vente de toute prise ; et enfln, 5". De jouir, dans les relations commerciales des 6tats de sa Majesty daiioise avec les pays en guerre, de toute siiret6 et de toutes facilit6s pour les navires danois, ainsi que pour leurs cargaisons, avec obligation toutefois pour ces navires de se conformer aux regies g^neralement sta- biles et reconnues pour les cas sp6ciaux de bloous d6clar6s et effectifs. Tels sont les principes gSneraux de la neutrality adoptee par sa Ma- jesty le Eoi de Danemarck, pour le cas qu'une guerre en Europe viendrait a 6elater. Le Eoi se flatte qu'ils seront reconnus conformes au droit des gens et que leur loyale et fldele observation mettra sa Majesty en etat de cultiver avec les puissances amies et alliSes ces relations que, pour le bien deses peuples, il lui tient tant a coeur de preserver de toute interruption. ^^__ 1 JJe Copei.h igue et de Stoo iholm. 124 TEEATY OF WASHINGTON PAPEKS ACCOMPANYING [539] 'No. 4.— TEANSLATION.— NOTICE OF THE GENERAL APPLICATION OP THE DECREE OF THE 4th OF MAY, 1803, RELATING TO THE CONDUCT OF MERCHANTS AND NAVIGATORS IN CASE OF WAR BETWEEN MARITIME POWERS. Copenhagen, the 25th of July, 1870. In accordance -with the command of His Majesty the King, the minis- try of foreign affairs gives hereby public notice that on account of the war, now broken out between Prance and Prussia, the decree of the 4th of May, 1803, is to go into effect with the following modifications : § 1. The royal Latin ship's pass, prescribed by the decree of the 4th of May, 1803, is, according to the law of the 13th of March, 1867, abro- gated for ships which are provided with certificates of nationality and registrar and for ships that are still sailing with papers formerly pie- scribed ; the bill of tonnage, together with other documemts of legitima- tion, is to be considered as a sufficient proof of the nationality of the ship. [540] * § 3. The rule concerning the nationality of the crew prescribed in the decree of the 4th of May, 1803, § 8, is abrogated by the law of 23d -January, 1862, concerning the hiring of foreign sailors. § 3. By the declaration signed in Paris the 16th of April, 1856, by the two belligerent powers, and acceded to by His Majesty on the 25th of July of the same year, concerning the rights of neutral powers during a war between maritime powers, the following rules are accepted : 1. Privateering is, and continues to be, abolished ; 2. The neutral flag covers the hostile cargo with the exception of con- traband of war; 3. JSTeutral cargo, with the exception of contraband of war, is not lia- ble to seizure on board of hostile ships; and 4. Blockade in order to be binding must be effective, and must be maintained by a force sufficiently strong to prevent access to the hostile coast. § 4. Besides the articles mentioned in paragraph XIII of the decree of the 4th of May, 1803, all such wrought articles which can iminediately be applied to the uses of war are to be looked upon as contraband of war. [541] *In case that changes and additional rules in relation to contra- band of war should become necessary in consequence of particu- lar agreements between His Majesty and foreign powers, the ministrv for foreign affairs reserves to publish what may be thought necessary. § 5. In consequence of the neutrality which His Majesty has determined to maintain during the continuation of the war, the royal subjects are herewith forbidden to take service in- whatsoever quality among either of the belligerent powers, whether it be on land or on board of their government ships, as well as more particularly to pilot the ships of war and transport-ships of these powers outside of the Danish pilot waters. The ministry for foreign affairs, Copenhagen, the 25th of July, 1870. O. D. EOSENOEIS" LEH^T. No. 5.— GENERAL INSTRUCTION FOR COMMANDERS OF SHIPS IN DANISH WATERS DURING THE STATE OF NEUTRALITY OF DENMARK. [542] *§ 1. The commander of a vessel of war, sailing in our own waters, has as far as possible to preserve order on coasts, COUNTER CASE OP THE UNITED STATES. 125 roads, or m harbors, and to see that commerce and navigation go on as usual, and without interruption or molestation by strangers. §i2. All possible kindness and politeness must be shown to all for- ,eign vessels of war of whatsoever nation, but no active assistance must in any way be rendered them, except such as is of a purely humane nature. It is especially forbidden to assist them in loading, furnishing pilots, or any other nautical help. § 3. In case foreign vessels of war have communication with the land, the maintenance of order is enjoined upon the police of the place or port-captain, but assistance and advice are always to be yielded to such authorities whenever required. If conflicts may arise, either on account of misunderstanding (want of knowledge of language) on the one or the other side, or on account of excessive exactions on the part of the foreign vessels of war, tlie commander of the Danish (543] vessel of *war has to intervene in a mediatory, explanatory, and conciliatory manner, but at the same time flrnlly and seriously, whenever the rights of the King's subjects and the neutrality of the Danish territory are concerned. § 4. The Danish territory extends one Danish mile from the fixed coast of the King's lands, (see thb circular of chancery, August 18, 1810,) except at such places where the distance between the Danish and foreign coasts is less than one mile, at which places Danish juris- diction extends to the middle of the sea. § 5. It is His Majesty the King's will, that ships of all nations be under the protection of the King's sovereignty M'hile they are within the limits of Danish territory, in consequence of which the Danish neu- trality is to be maintained within the limits of the territory, so that cap- ture and visitation of ships, be they belligerent, neutral, or Danish, can- not be allowed within the territory. [544J *6. The introduction of prizes into Danish harbors is not allowed. When prizes are brought to anchor on an open road or coast within limits of Danish territory, it is supposed to take place on account of urgent circumstances ; but then the commander of the Dan- ish ship of war must inform the j)rize-master to withdraw the prize as soon as possible; and, besides, special care must be taken that nothing is sold or brought on shore from the prize while staying on Danish ter- ritory. Necessary information must, in respect to this, be given as soon as possible to the proper authorities on land. § 7. If a ship, be it a war or merchant vessel, in its flight from a hosr tile power, seek refuge in Danish territory, it is the duty of the com- mander of the port to take it under his protection. It is expected that warning be given to the pursuing ship of war, either by sending a boat with an officer or by firing a warning salute. TMs will be sufficient to prevent such a breach of neutrality ; but if against all expectation [545] a conflict or seizufe*should, nevertheless, take place, the Danish commander has to inform in a brief protest, written in a firm but polite tone, the commander of the foreign ship of war, that a breach of Danish neutrality and territory has been committed. The Danish com- mander then reports as soon as possible to the ministry what had taken place, and sends a copy of the protest, together with the name of the ship concerned and its commander, &c. § 8. If foreign ships of war are inclined to enter into Danish ports, where a Danish ship of war is stationed, the commander takes care that the ship conforms to the established regulations of the harbor, general as well as local, such as discharging of powder, extinguising of fire, &c. 126 TEEATY OP WASHINGTON PAPEES ACCOMPANYING § 9. Outside of Danish territory the sea is to be considered as open water, in consequence of which a Danish commander is to look upon any enterprise undertaken by the ships of the belligerent. powers as not concerning him. If, however, foreign ships of war in open water, but within sight [546] of a Danish ship of war, *should attack Danish merchantmen, the commander ought to see that such ships be permited to con- tinue their course as soon as possible ; but he is only allowed in such cases to act mediatingly. If the foreign visiting ship of war declare it as his duty to capture such a vessel on account of its being loaded with contraband of war for a port of the belligerent powers, the commander of the ship cannot make any opposition to such an act; he has only to report, as soon as possible, to the ministry what had taken place. ' If a foreign ship of war, against all expectation, feel inclined to molest a Danish merchantman, by depriving it of its crew, goods, provisions, or by occupying the ship for its service as a transport of sick persons or seized goods, the Danish commander must declare that he is bound to protect the liberty and rights of his countrymen to navigate the sea unhindered, a right limited by nothing except by the inconveniences unavoidable to all seafaring nations on account of the actual state of war ; and he must seriously and most urgently, in regard to Danish ships, caution against any action or transgressing of this limit. [547]" Unless such an admonition is not attended *to, a serious pro- test is lodged against the proceeding of the foreign ship of war in which the Danish commander, besides declaring the action to be un- lawful and a breach of the neutrality of Denmark, for the consequences of which he renders the concerned commander responsible, must in every case reserve to the ship-owner or captain ample remuneration and compensation for the loss of goods and time thus sustained by him. Although it is the object of these instructions to give the commanders exact orders how to proceed in certain definite cases, the ministry has, at the same time, been willing to give them advice how to act in certain accidental and unforeseen cases, where it depends upon their good con- duct and prudence combined with seriousness and determination. As a rule for such unforeseen cases, the commanders are enjoined to observe the strictest neutrality, abstaining from any sign of partiality either for the one or the other of the belligerent powers whatever, in words or actions, maintaining the neutrality of the Danish territory as well as good order, all in connection with those outward tokens of politeness and kindness which are in use on board of ships of war. [548] 'No. 6.— TEADUCTION FEANQAISE DE LA § 76 DU CODE PflNAL, (DU 10 FI5VEIEE, 1866.) ' Celui qui, sans y etre autoris6 par le roi, entreprendrait de recruter des hommes pour servir dans une arm^e 6trangfere, est puni de travaux forc(§s jnsqu'^ six ans, si le royaume est engag6 dans une guerre, et, si tel n'est pas le cas, d'une peine pouvant aller depuis deux mois de simple r6clusion jusqu'a deux ans de travaux forces. Le sujet qui, sans la permission du roi, s'engageraib en temps de guerre au service d'une puissance ^trangfere n'^tant pas en guerre aveole Dane- marck, est passible de prison, ou, suivant la nature du cas, des travaux forces jusqu'^ une ann6e. L'acte de recrutement est accompli depuis le moment on un individu est accepts pour le service stranger. COUNTEK CASE OF THE UNITED STATES. 127 [549] * English translation of paragraph L XX VI of the Danish penal code of February 10, 1866. Those wlio, without the authority of the King, attempt to recruit men for service in a foreign army, will be punished with forced labor for six years, if the kingdom is engaged in a war; and if such isnot the case, with a penalty ranging from two months' solitary confinement to two years of forced labor. The subject who, without the permission of the King, engages in times of war in the service of a foreign ijower not at war with Denmark, is liable to imprisonment, or, according to the nature of the case, to forced labor, for one year. The act of recruiting is considered accomplished from the moment when an individual is accepted for the foreign service. [550] 'No. 7.— LAW RELATING TO THE EEGISTE.VTION OF DANISH SHIPS. [Translation.] We, Christian the Ninth, by the grace of G-od King of Denmark, the Vandals, and Goths, Duke of Slesvig-Holstein, Storman, Ditmarsh, Lauenborg, and Oldenborg, make known: The rigsdag have passed and we have sanctioned the following law : § 1. To entitle a ship to carry the Danish flag its owner or owners must, either by right of birth have the right of Danish nationality, and must not, in this case, be domiciliated abroad, or, on the other hand, the? owner or owners must have acquired the same right by having become a Danish citizen in virtue of a fixed domicile in Denmark. If the ship is owned by a share company the latter shall be subject to Danish law, and its board of directors have domicile in Denmark, and be composed of shareholders who fulfill the above-required conditions. \ § 2. A register shall be kept of all ships which are entitled to [551] carry the Danish flag and which *have been measured according to the law of measurement. After entry on the registry a docu- ment shall be delivered (certificate of registry and nationality) which, as long as it remains in force, shall in conjunction with the marks (§ 3) affixed to the ship serve for and be sufficient to identify it in all cases ■where the question of its nationality and identity may arise. Besides the above-mentioned document, every registered ship shall, both in time of peace and war, be provided with a list of the crew, a customs clearance, besides the necessary papers relating to the cargo. Ships of twenty tons burden and thereunder, engaged in the home coasting trade, are exempt from carrying the certificate of registry and nationality ; they shall be entered on a separate register and only receive a' certificate of measurement, the form of which shall be decided by the commissioners of customs. Such vessels, however, may on application be entered on the principal register and, upon conforming to the pro- visions of the present law, obtain a certificate of registry and nation- ality. Danish trading-vessels shall hereafter only be entitled to carry the ordinary Danish trading-flag, as specified in the ordinance of the 11th July, 1748, § 4. [552] *§ 3. All ships registered according to § 2 shall have the mark of nationality, " D. E.," (Dansk Eiendom,viz: Danish property,) 128 TREATY OP WASHINGTON — PAPERS ACCOMPANYING the totinage and registered letters, permanently and legibly marked on the main-beam in the after-part of the main hatchway ; or, if this can- not be effected, in another conspicuous and suitable spot. When these marks no longer exist, the ship cannot be recognized as a Danish reg- i^f'PT'pfl vgssg1» § 4. The registration of ships shall be under the control and superin- tendence of the commissioners of customs, and shall be effected in spe- cified registration districts, the extent of which the commissioners shall limit: in Copenhagen, by a special registrar, out of Copenhagen, by the local customs authorities, whose jurisdiction shall be fixed by the cen- tral commissioners, and at the Feroe Islands by the district sheriff. The Copenhagen registrar shall keep a general register of all ships registered in the kingdom, and issue the certificates of registry and na- tionality required by § 2. § 5. The ships belonging to each district shall be entered on the district register in consecutive series and running numbers. [553] *Ship-owners may have their ships registered in whichever dis- trict they please; the ship shall then be considered as belonging to this district. The registers shall be kept in authorized books, which always shall remain by the respective oflaces. § 6. All registered ships in the kingdom shall be entered in the cen- tral register in consecutive order and with running letters. The letters a ship thus obtains in the central or head register, and which are unchangeable as long as the registration remains valid, shall be the registration letters of the vessel, and shall be marked on it. § 7. The register books, the central as well as the district registers, shall contain the following particulars under separate headings, viz : % 4. The ship's registration letters, name, port of registry, and place where built. 2. Description of ship, mode of construction with details, and its principal dimensions. 3. The ship's tonnage, with a statement of the method followed in calculating it. 4. The name of the registered owner or owners, their rank or profes- sion, and title. When there are several registered owners, a state- [554] ment of -their relative part shares in the ship shall * be given. If the ship belongs to a company, its name, place of business, and managing owner's name, shall be inscribed. The day and the year of the registration of each ship shall be inscribed in the register-book. § 8.. When a registered ship is taken oft or erased from the register- book, the reason for it must be entered in the same, together with date and place of issue of such vouchers as might prove that it had ceased to exist, has lost its right of nationality, or has been transferred to an- other registry-district. (§§ 16, 17, and 19.) § 9. The owner of every ship that is to be registered must personally, or through an authorized agent, give written notice thereof to the reg- istrar of the district to which the vessel belongs ; or, if at the time when the registration is to take place the said vessel is in another district, to the registrar of such district. This notification must be accompanied by the following proofs : 1. The builder's certificate, and, in as far as the ship is foreign-built,, the bill of sale, or other document in proof of the transaction, [555] whereby it became Danish property, as well as a receipt *for the payment of the import-dues. These documents must be pro- duced in the original and in. copies, which latter will be retained in the archives of the register-offlce. COUNTEE CASE OF THE UNITED STATES. 129 2. One of the ship's owners, or owner, shall make a written declara- tioE upon honor, supported by the necessary proofs, to the efi'ect that they, or he, are persons (as described by § 1) entitled to own a Danish ship. If the ship is owned by a share company, then one of its direct- ors must give the like declaration and proofs that they have complied with the requirements of § 1.' Those declarations shall further contain an assurance that the certificate of registry and nationality thus ob- tained shall not be misused to procure for any other ship, or the same ship in possession of foreigners, the privileges of Danish nationality. This declaration shall be signed by the party concerned, either in the presence of the registrar, or before a public notary. • Should doubts arise as to whether the party concerned is entitled to own a Danish ship, he must prove his title by an attestation from the authorities at his place of residence. In special cases, the board of customs may make exceptions [556] with respect to proofs required, if *satisfactory explanations through other channels are given. § 10. When the local registrar has drawn up the necessary statement with respect to registration and measurement, he shall send it in (with vouchers) without delay to the central registrar in Copenha- gen. The latter shall check the measurements and examine the accom- panying vouchers in proof thereof, and he may, if considered necessary, cause the ship to be wholly or partially remeasured and fresh docu- ments and proofs to be procured. In virtue of the proofs thus collected the ship shall be entered in the central register- book. § 11. When the registration is effected, the registrar-general shall issue a certificate of registry and nationality, which shall include the certificate of measurement and other details required by § 7. The certificate shall be made out in accordance with the subjoined forniulai'y. It shall (together with the documentary proofs sent in) be sent, without delay, to the local registrar, who thereupon shall make the necessjiry entry in the local register-book, § 5.) After having caused the mark of nationality, " D. E.," the tonnage and registry letters to be marked on the vessel, and the stamp having duly been paid, [557] *he shall deliver the certificate to the owner. Before the ship clears, the registrar shall make an indorsement ofi the certificate of the master's name and competency to command a vessel. If, at the time of registration, the ship is not in the district where she is wished to be registered, the registrar, who has delivered up the certiflcate, shall transmit to the registrar of the district where she be- longs the documents and information required by § 9, to enable the -latter to enter her on the register-book of his district. With respect to the Feroe Islands, the county or district sheriff shall issue a provisional certificate of nationality in the form to be hereafter specified by the authorities, and which shall be valid until such time as the Oopenhagan registrar-general issues a permanent document. § 12; The certificate shall always remain with the ship, and be pro- duced at the custom-house, as well as wherever required by the Danish civil, military, or consular authorities. Every change or indorsement of the certificate by others than the registrars or consuls is prohibited, and may expose the holder to punishment; in some cases (according to circumstances) as for forgery. § 13. A ship, built or. purchased abroad for Danish account, cannot be registered until rous, Charles, par la grace de Dieu Eoi de Suede et de Norwege, des Goths et des Yandales, savoir, faisons : que la § 5 de Pordonnance royale du 8 avril 1854, relative ^ ce qui doit etre observe pour la surete du commerce et de la navigation de la Suede, en temps de guerre entre des puissances maritimes etrangferes, etc., ayant donne lieu a differentes interpretations, nous avons juge bon et utile de declarer que la restric- tion apportee par la dite §, au droit de transporter dans des batiments su6dois des objets de contrebande de guerre, ne s'applique pas au cas oil des objets de cette categoric, qui n'appartiennent pas ou qui ne sont pas destines aux puissances belligerantes, ou a leurs sujets, sont trans- portes dans des batiments suedois entre les ports des puissances neutres. Mandons et ordonnons a tous ceux a qui il appartiendra de se con- former exactement a ce que dessus. En foi de quoi nous avons sigue la presente de notre main et y avons fait apposer notre sceau royal. Donne au chateau de Stockholm, le 29 juillet 1870. OHAELES. [L. S.] Ales. Adleeokeutz. 140 TEEATY OF WASHINGTON PAPERS ACCOMPANYING [586] *No. XII, — BRAZIL.. [Supplemental.] DIVERS NEUTRALITY CIRCULARS. For English translatioQ see United States Claims, vol. 7, p. 107. No. 1, of 18 May, 1854. No. 2. of 30 June, 1859. No. 3, of 12 October, 1859. No. 4, of 1 August, 1861. No. 5, of 23 June, 1863. No. 6, of 17 December, 1864. No. 7, of 27 August, 1870. No. 8, of 14 October, 1870. No. 9, of 29 October, 1870. No. 10, of memorandum of questions between Brazil, Germany, and France. [687] *No. 1. 1^ SEcgio.— N.— GiECULAE.— Rio de Janeiro. — Ministeeio des Negocios Estkangeiros, em 18 DE Maio db 1854), Illm. e Exm. Se. Tenho a honra de remetter a V. Ex. na copia junta, aviso que com a data de 15 do corrente mez foi por este ministerio ex- pedido aos da justiga, marinhae guerra, communicando-lhes as resolugoes que governo de sua magistade o imperador julgou dever adoptar durante a guerra que infelizmenteexiste declarada entre a Gra-Bretanha e a Franga por uma parte, e a Russia pela outra. Estas resolugoes sao as seguintes : l**. Que nenhum corsario com a bandeira de qualquer das potencias belligerantes poderd ser armado, on approvisionado ou admittido com suas presas nos portos do imperio. 2='. Que OS subditos brasileiros nao poderao tomar parte em armamento de corsarios ou em quaesquer outros actos oppostos aos deveres de uma stricta neutralidade. As resolugoes que ficao mencionadas sao em parte fundadas no direito internacional que regula as obrigacoes dos neutros em tempo de guerra, e em parte na legislagao do paiz, e forao acouSelbadas pelo dever, que tern o governo de sua magistade o imperador de attender aos interesses do commercio dos subditos brasileiros, e de observar na presente guerra uma stricta neutralidade. [588] Com tudo 4 execugao das medidas que deixo refer*idas iiao 6 isenta de difficuldades e complicagoes, e 6 isto o que cumpre acaiitelar. Parece-me acertado que, antes de V. Ex. mandar jiroceder a respeito de qualquer navio que esteja nos nossos portos, por se dizer que est^ no caso da resolugao do governo, que determina que nenhum corsario com bandeira de qualquer das potencias belligerantes possa ser armado, ou approvisionado oa admittido com as suas presas dentro dos portos do imperio, procure verilicar a circumstancia de que o navio 6 corsario^ ou seja h vista dos papeis de bordo ou por actos notorios de corso, que ja tenha praticado. Estas diligencias deverao ser encarregadas aos auditores de marinha COUNTER CASE OF THE UNITED STATES. 141 nos lugares em que os houver, e aos respectivos juizes de direito ou seus substitutos,' aonde nao houver auditores de inarinha, e se pelas diligencias se provar que o navio 6 corsario, dever4 impedir-se o seu armamento ou approvisionamento e mandarse sahir do porto. A entrada nos nossos portos de corsarios com presas6 expressamente Tedada; mas se ella se verilicar por algum caso de forga maior, cumpre que V. Ex. os mande immediatamente sahir do porto. Todas as iudagagoes que V. Ex., maudar fazer,para este fim deverao ser reduzidas a escripto, e transmitidas depois ao governo de sua majestade o imperador. Tenho tambem por muito conveniente que Y. Ex., no caso de quaesquer indagagoes e medidas que tomar, proceda, tanto quanto for [589] possivel, de accordo e com conhecFmento dos agentes consulares da Grra-Bretanha e da Franga, tao bem como da na§ao a que se disser que pertence o navio, contra o qual hou ver suspeitas de ser cOrsario. Procendendo assim,o governo de sua majestade o imperador mostrar4 ai lealdade e boa fe, com que deseja conciliar a rigorosa execufao das medidas que adoptou com os meios de evitar difflculdades, e toda a espe- cie de disintelligencia com os governos com quem conserva relagoes de amizade. A circumspec9ao e prudencia de Y. Ex. aflangao que as medidas do governo de sua magestade o imperador serao executadas sem que ap- pare9ao inconvenientes no porto dessa capital. Para que o nesmo acoutega nos outros portos da provincia aonde possao fintrar embarcagoes estrangeiros, e indispensavel que Y. Ex. ex- erga a mais activa vigilancia sobre as respectivas autoridades, e Ihes explique as instrucgoes do governo de sua magestade o imperador. Prevalego-me da occasiao para renovar a Y. Ex. as seguran^as da minha perfeita estima e distincta considera§ao. ANTOlSriO PAULINO LIMPO DE ABEETJ, A. S, Ex. Sr. Presidente da Provincia de. . , No. 2. 1* SeccIo. — K— Circular. — Eio de Janeiro. — Ministerio dos Nbgocios Estrangeiros, em 30 Julho de 1859. Illm. eExm. Sr. : Est^ no conhecimento de Y. E. que o governo [590] imperial, de accordo com os invariaveis prin*cipios de sua politica externa, e bem consultando os interesses do imperio, re- solveu manter-se neutra na guerra que infelizm^nte sobreveiu entre a Gonfederagao Argentina e a provincia de Buenos- Ayres. A n'eutralidade do Brasil nessa contenda qne o governo de sua ma- gestade cordialmente deplora, nao tem outras limitayoes senao as que expressao os factos vigeutes, em rela9ao ao estado oriental do Uruguay, e 08 que implioitamente se contem no art. 2o do tratado de 7 de Mar90 de 1856, celebrado entre o imperio e a Oonfederagao Argentina. Sua magestade o imperador houve pour bem que se recommendasse a Y. Ex. a stricta observancia daquelles principios, segundo os quaes os subditos brasileiros se devem abster de toda participa9ao ou auxilio em favor de qualquer dos dous belligerantes. A exportagao de artlgos bellicos dos portos do imperio para os de Buenos- Ayres e absolutamente prohibida, ou se pretenda fazer debaixo da bandeira brasileira ou de outra na§ao. O mesmo oommercio de con- 142 TEEATY OP WASHINGTON PAPERS ACCOMPANTING trabando de guerra deve ser vedado aos iiavios brasileiros, ainda que se destinem aos portos da Coufederagao Argentina. _ ,., JSTao 6 provavel que outro caso de viola9ao de neutralidade, ainda. al^in do que acima prevejo occorra nessa provincia, sem embargo por6m, hei de brevemente expedir a V. Ex. instrucg-oes mats explicitas. Eu- tretanto V. Ex. se regular^, em qualquer occurrencia extraordinaria, pelos principios que se expressao no presente aviso. [591] *Tenho a honra de renovar a V. Ex. os protestos da rainha perfeita estima e distincta consideracao. JOSE MAEIA DA SILVA PAEAlSrHOS, A. 8. Ex. 8r. Presidente da Provincia de. . . . No. 3. 1=' SECglO. — K. — ClEOULAK. — ElO BE JANBIEO. — MlNISTERIO DOS Negocios Estbangeieos, em 12 DE Otjtubso de 1859. ^5 Illm. b Exm. Sr. : O goveruo imperial teve conbecimento por uma. Dota que Ihe dirigiu a legajao argentina uesta corte deque o governo de Buenos-Ayres mandara comprar e armar em Inglaterra dous vapores para serem empregados na guerra em que estd empenhado com a Gon- federa9ao Argentina. Se bem nao possa o governo imperial, no caso de sahirem dos portos da Gra-Bretanha aquelles vapores e de toearem apenas aos do imperio, em trausito para Buenos- Ayros, mandar proceder 4 sua deten^ao, como foi por aquella legaQao solicitado, 6 conforme aos principios de neutrali- dade que se tem imposto o goveruo imperial naquella guerra, impedir, que recebao armamento, tripolagao, e menos ainda que transportem ob- jeetos bellicos para o porto de Buenos-Ayres. Eeflro-me para melhor goveruo de V. Ex. a circular que foi-lhe expe- dida por este ministerio em 30 de Julho ultimo. Eeitero a V. Ex. as segurangas da minha perfeita estima e distincta consideragao. [592] * JOAO LUIS YIEIEA ANSAl^SAO DE SINIMBTJ, A. S. Ex. Sr. Presidente da Provincia de. . . . lio.i. V SeCCAO.— N. — OlROULAE.^-ElO DE JANEIRO. — MiNISTEBIO DOS Negocios Esteaneieos, em 1 DE Agosto de 1861, Illm. e Exm. Se. : A luta que rompeu entre o governo federal dos Estados-Unidos Korte-Americanos, e alguns desses estados que declara-:;' rao constituir-se em confederagao separada, pode trazer ao nosso paiz questoes, para cuja solucao releva que V. Ex. esteja preveuido, e por este motivo recebi ordena de sua magestade o imperador para declarar a V. Ex. que o goveruo imperial julga dever manter-se na mais stricta neutralidade durante a guerra, em que infelizmente se achao aquelles estados, e para que esta neutralidade seja guardada cumpre que se observem as deter nnnaQoes seguintes. Os estados confederados nao tem existencia reconhecida, mas, havendo COUNTER CASE OF THE UNITED STATES. 143- constituido de facto um governo distincto, nao p6de o governo imperial Gtesiderar como actos de pirataria os sens armamentos navaes, nem rfcusar IIiqs, com as necessarias restricgoes, o caracter de belligerailtes que assumirao. Os subditos brasileiros devem nesta conformidade abster-se de toda participagao e auxilio em favor de um dos belligeraates, e nao poderao tomar parte em quaesquer actos, que possao ser considerados como [593] hostis a uma *das duas partes, e contraries aos deveres da neutrali- dade. A exportagao de artigos bellicos dos portos do imperio para os novos estados confederados fica absolutamente prohibida, ou se-pretenda fazel- a debaixo da bandeira brasileira, ou da de outra nagao. O mesmo commercio de contrabando de guerra deve ser vedado aos navios brasileiras ainda que se destinem aos portos sujeitos as governo da Uniao ISTorte- Americana. Nenhum navio com bandeira de um dos belligerantes, e que esteja empregado nesta guerra ou a ella se destine, poder4 ser approvisionado, esquipado ou armado nos pottos do imperio, nao se comprehendendo nesta prohibigao o fornecimento de vitualhas e provisoes navaes indis- pensaveis A continuagao da viagem. Nao ser4 permittido a navio algum de guerra ou corsario entrar e per- manecer com presas nos nossos portos ou bahias mais de 24 horas, salvo caso de arribada for9ada, e por nenhum modo Ibes sera permittido dispor das mesmas presas ou de objectos dellas proveuientes. Na execugao destas medidas,e na solugao das questoes que occorrerem, V. Ex. se guiar4 pelos principios de direito internacional, teiido em con- sidera9ao as instrucgoes expedidas por este ministerio em 18 de Maio de 1854j guardado o pensamento da circular de 30 de Jullio de 1859, com relagao aos Estados- (Jnidos em luta com os estados confederados, e [594] communicar4 ao * governo imperial quaesquer difficuldades ou occurrencias extraordinarias que exijao novas instruc9oes. Eeitero a V. Ex. as expressoes de minha estima e distincta conside- ra9ao. BENYENUTO AUGUSTO DE MAGALHAES TAQUES, A. S. Ex. Sr. Presidente da Provincia de , . , . Ho. 5. l?* SECglO. — N.— ClECULAR.— ElO DE JANBIKO.— MlNISTERIO DOS NE- GOCIOS ESTEANGEIKOS EM 23 DE JUNHO DE 18C3. Instrucgoes regulando a neutralidade do Brasil na luta dos Estados- Unidos da America do Norte. Illm. e Exm. Se. : Convindo dar maior desenvolvimento & circular deste ministerio do 1° de Agosto de 1861, que estabeleceu os principios reguladores da neutralidade que o governo imperial resolveu assumir em presen9a da luta dos Estados-Unidos da America do Horte, ja para explicar alguns desses principios, j^ para indicar em geral os casos em que se deve julgar violada a neutralidade e os meios de a fazer effectiva ; manda sua magestade o imperador declarar a V. Ex. o seguinte, para seu' conhecimento e devida execu9ao. Pelas palavras " salvo o caso de arribada for9ada " mencionadas na referida circular, devetambem entender-se: 144 TREATY OF WASHINGTON PAPERS ACCOMPANYING Queo navionao se^ obrigado a sahir do porto dentro do prazp [595] de 2i horas, se nao houver podido effectual *os concertos indis- pensaveispara que possa exp6r-se ao mar sem risco de perderse. Se igual risco se der por causa do m^o tempo. Se finalmente for acossado pelo inimigo. Nestas hypotheses flea ao arbitrio do governo na corte e dos presidentes nas provincias determinar, d vista das circumstancias, o tempo dentro do qual deverS. o navio saiiir. Os corsarios, ainda que nao conduzao presas, iiao serao admittidos nos portos do imperio por mais do 24 horas, salvo o caso de arribada fbrgada. As presas de que trata a circular do 1° de Agosto sao os navios apresados pelos belligerantes ou pelos corsarios, de inodo que a pena imposta aos que conduzerem presas nao 6 applicavel aos que tao s6- meute trouxerem objectos provenientes dellas, nao podendo, porem, em caso algum, dispor dos mesmos objectos assim como das presas. De conformidade com a circular citada,.os navios belligerantes nao pbdem receber nos portos do imperio senao as vitualhas e provisoes navaes de que absolutamente caregao, e fazer os concertos necessaries para a continua^do da viagem. Esta disposi9ao presuppoe que o navio vai com destine para um porto qualquer, e que so de passagem e por necessidade deinanda am porto do imperio. A presupposigao da circular nao se verificar4, por^m, se um mesrao navio procurar o porto amiudadas vezes, ou se, depois de ter re- [596] frescado em um porto, entrar *em outro logo depois, pretextando mesmo flno, salvo os casos provados de forga maior. A frequencia, pois, sem motive sufi&cientemente justiflcado, deve au- torizar a suspeita de que o navio nao est4 realmente em viagem, mas* percorre os mares vizinhos do imperio para apresar navios inimigos. O asylo e socorros que em tal caso se preste a um dos belligerantes poder4 ser qualificado como auxilio ou favor prestado contra o outro, e portanto como quelra da neutralidade declarada. Oonvem conseguintemente que nm navio, que ja uma vez; tenha entrado em um dos nossos portos, nao seja recebido no mesmo porto ou em outro, , pouco depois de haver entrado no primeiro, para receber vitualhas, pro- visoes navaes, efazer concertos, salvo o caso devidamente provado de forca maior, senao depois de um prazo razoavel que faga crer que o navio j^ se tinha retirado das costas do imperio, e a ellas regressou depois de ter concluido a viagem a que se destinava. Por motivos identicos aos que ficao expostos; nao ser4 permittido nos portos do imperio que os navios belligerantes recebao generos vindos directamente para elles em navios de qualquer nagao ; o que signiflcaria que nao procurao os belligerantes os nossos portos de passagem, e por necessidade imprevista, mas com o proposito de permauecer na proxi- midade das costas do imperio, tomaudo por isso de antemao as [o97] cautelas precisas para se fornecerem dos meios de continuar * em suas emprezas. A tolerancia de um semelhante abuso equivaleria a permittir que os portos do imperio servissem aos belligerantes de base de operagpes. Ficando assim explicados os principios da circular do 1" de Agosto de 1861, cumpre que nos portos, bahias e ancoradouros de imperio se exya dos belligerantes a flel observancia das seguintes condicoes. 1". Os navios de guerra admittidos em um ancoradouro ou porto de- verao permauecer na tranquillidade a mais perfeita, e na mais completa COUNTER CASE OF THE UNITED STATJES. 145 paz com todos os navLos que alii estiverem, aincla- os -de guerra, ou ar- mados em gnerra, do sen inimigo. 2". Nao poderao augmentar a sua tripolagao, contractando marin- heiros de qualquer nagao que seja, inclusive compatriotas seus. 3°. Nao poderao igualmente augmentar o numero e o calibre de sua artiltiaria, nem per qualquer modo aperfei9oal-a, comprar ou embar- car armas portateis, e munigoes de guerra. 4P. Nao poderao porse de embpscada nos portos ou ancoradouros, ou nas ilhas e cabos dos mares territoriaes do imperio, & espreita de navios ininiigos que entrem ou saiao; nem mesmo procurar informagoes a res- peito daquelles que sao esperados ou que devem sahir ; e nem flnalmente, fazer-se a vela para correr sobre um navio inimigo avistado ou sig- nalado. [598] 5°. Nao poderao fazer-se & vela immediatemente *depois de um navio pertencente a uma nagao inimiga ou neutra. Sendoa vapor ou de vela tanto o navio que sahir como aquelle que ficar, mediar4 entre a sahida de um, e de outre o prazo de 24 horas. Se, porem, for de vela o que sahir, e a vapor o navio que ficar, nao po- derd este sahir senao 72 horas depois. 6°. Durante a sua estada no porto, nao poderao os belligerantes em- pregar nern a forga, nem a astucia para rehaver presas feitas aos seus concidadaos que se acharem no mesmo asylo, ou para libertar prisioneiros de sua nagao. 7". Nao poderao proceder no porto neutro, nem 4 venda, nem ao res- gate das presas feitas ao seu inimigo, antes que a validade da presa seja reconhecida pelos tribunaes competentes. Kca subentendido que as infracgoes de cada uma destas sete condi- 9oes constituirao otros tantos casos de violagao da neutralidade do im- ^perio, sujeitando os infractores 4s penas quelhes forem impostas. E para fazer effectiva a neutralidade, cohibindo e reprimindo os abuses que se practicarem, deverao ser empregados os seguirites meios. 1°. Veriflcar previamente a concessao do asylo, o caracter do na%'io, e seus precedentes em outros portos do imperio, para depois conceder ou negar a entrada e a permanencia, escassear o favor, ou redobrar de vigilancia. [599] *2^. Marcar ancoradouro onde os navios estejao debaixo das vistas immediatasdapolicia, louge de paragens e circumstancias suspeitas. 3°. Mandar flscalisar desde a entrada at^, a sahida, o movimento dos belligerantes, veriflcando a innocencia dos objectos que embarcarem. 4°. Ordenar h policia que nao consinta no desembarque e venda dos objectos provenientes de presas. 5°. Impedir que se fa§ao presas nas aguas territoriaes do imperio, empregando para isso 4 forga, sendo necessario j e, se as presas ou objectos, dellas provenientes, entrados nos portos do imperio, houverem sido feitos nas mesmas aguas territoriaes, deverao ser arrecadados pelas autoridades competentes para se restituirem aos seus legitimes proprie- tarios, considerandose sempre nulla a. venda de taes objectos. 6". Nao admittir nos portos do imperio o belligerante que uma vez houver violado a neutralidade. 7". Fazer sahir immediatamente do territorio maritimo do imperio, nao Ihes fornecendo cousa alguraa, os navios que tentarem violar a neutralidade. 8". Pinalmente, usar da forga, e, na falta ou insufficencia desta_ pro- testar solemne e energicameiite contra o belligerante que sendo a&ver- tido e intimado nao desistir da viola9ao da neutralidade do imperio ; 10 A— II l46 TREATY OF WASHINGTON PAPEES ACCOMP ANTING ordenando Elsfortalezas e aos navios de guerra que atirem sobre [600] o *belligeraiite que acommetter o seu iaimigo no nosso territorio, e sobre o navio armado que se dispuzer a sahir antes de decor- rido tempo marcado depois da sabida do navio pertencente ao bellige- rante coutrario. E porque o vapor Alabama dos Bstados-Oonfederados violou raani- festamente a neutralidade do imperio, por ter infringido as disposigoes da circular do 1' de Agosto de 1861, tornando a ilha Eata em base de suas operagoes, pois que para alii conduziu presas, e sabiu a fazer outras, que mandou queiuiar depois de as haver conservado alguns dias no aucoradouro da mesma ilha ; ordena sua magestiide o impera- dor que o dito vapor nao seja mais recebido em porto algum do imperio. Eenovo a V. Ex. as segurangas de minha perfeita estima, e distincta consideracao. MAEQUEZ DE ABEANTES,- As. Ex. 8r. Presidente da Frovincia de . .• . . [601] *]S'o. 6. 1° Seooao. — Circular. — Eio de Janeiro em 17 de Dezembeo de 1804. — MlNISTERIO DOS S^EGOCIOS ESTRANGEIEOS. Ill™" Ex™° S'' : Em officio de 24 do mez proximo flndo communicoume o presidente da j)roviucia da Baliia que alii chegara a galera amerieana "Kate Prince," procedente de Cardiif, a qual fora visitada no alto mar pelo vapor confederado " Shenandoah," cujo commandante exigiradocapi- tao da mesma galera, para deixal-a continuar a sua viagem, que assignasse uma obrigagao pecuniaria e recebesse a seu bordo quatorze prisioneiros provenientes de dous navios incendiados. Havendo o commandante do " Shenandoah," James W. Waddell, prati- cado acto de violar o sello do consulado do imperio que fechava o manifesto da galera " Kate Prince," resolveu o governo imperial que fosse vedada a entrada em todos os portos do Brazil ao dito v^por " Shenan- doah," ou a qualquer outro navio commandado pelo referido Waddell. O que levo ao conhecimento de V. E. para sua intelligencia e execucao na parte que respeita a essa provincia. Aproveito a opportunidad para renovar a Y. E. as assegurangas da minha perfeita estima e distincta consideracao. A. S. E. o Sr. presi- dente da provincia de (ass.) [602] *JOAO PEDEO DIAS KEIEA. Conforme. 0. director leval. interino, Alexandre Affonse de Carvalho. No. 7. 1° SEcgio. — N. — Circular. — Eio de Janeiro. — Ministerio dos iTEGOCIOS ESTRANGEIEOS, EM 27 DE AGOSTO DE 1870. Illm. e Exm. Se : A legagao de sua magestade o imperador dos Francezes notificou ao governo imperial, por nota de 14 do corrente, a guerra que rebentou entre a Franga de urn lado e de outro a Prussia e OS paizes alliados que dao k esta o concurs© de suas armas. COUNTER CASE OF THE UNITED STATES. 147 , A mesraa leg!\gao solicitou, e o governo de sua magestade iicaba de declarar-lhe, que o Brasil observard a mais stricta neutralidade durante essa guerra, assim para com a Franga, cotno para com o outro bellige- laute e seus alliados. gorerno frances promette que suas forgas de mar e de terra obser- varao escrupulosameute para com as potencias neutraes as regras do direito internacioual e os priucipios estabelecidos pelo eongresso de Pariz em sua declaragao de 16 de Abril de 1856. O Brasil adheriu, como Y. Ex. sabe, a aquelles principios, e tem [603] portanto direito a que os navios *brazileiros e suas mercadorias gozem das garantias'por elles asseguradas. Gs principios a que alludo sao os seguintes : ', 1°. O corso 6 e flea abolido. 2°. O pavilhao neutral cobre a mercadoria inimiga, com excepgao do contrabando de guerra. 3°. A Hiercadoria neutral, com excepgao do contrabando de guerra, uao pode ser apresada sob o pavilhao inimigo. 4°. Os bloqueios, para serem obrigatorios, devem ser effectives, isto e, mautidos por forga sufflciente para prohibir realmente o aecesso ao lit- toral inimigo. A Prussia fez parte do ultimo eongresso de Paris, e consequentemente est4 obrigada as mesmas regras de moderagao e benevoleucia para com OS estados neutraes na presente guerra. Em conformidade do que levo exposto, cumpre que V. Ex. previna ao chefe de policia dessa provincia e &s respectivas autoridades fiscaes, Kiandando inserir esta circular na folha que publicar os actos officiaes, e podeudo por qu'^lquer outro meio que julgar conveniente fazer constar aos subditos brasileiros ahi residentes esta deliberagao do governo de sua magestade, a flm de que todos se abstenhao rigorosamente de actos oppostos aos deveres de uma stricta neutralidade. [604] Em quanto o governo imperial nao expedir *instruc5oes es- peciaes, dever4 V. Ex. guiarse pelas circulares do 1° de Agosto de 1861, e23 de Junho de 1863, no que for applicavel ao caso de que se trata. Tenhoahonra de renovara V. Ex. os protestos de minha perfeita estima e distincta consideracao. _ BAEAO DE OOTBGIPE, A. 8. -Ex. o 8r. Presidente da Frovincia de. . . . [605] *]Sro. 8. 1' SbCCAO.— N.— GlECULAK.— ElO DE JANEIEO.— MlNISTBEIO DOS NE- GOCIOS ESTEANGBlROS, EM 14 DE OUTUBEO DE 1870. Illm. e Exm. Se. : Sua magestade o imperador houve por bem re- solver que, na presente guerra entre a- Frauga e a Prussia, sejao man- tidas as circulares deste ministerio de 1 de Agosto de 1861, 23 de Junho de 1863 e 27 de Agosto ultimo, com o seguinte additamento: 1°. Os navios dos belligerantes tomaiao combustivel nos portos do imperio unicamente para a continuagao da viagem. E probibido o fornecimento de carvao aos navios que percorrerem os mares vizinbos do Brazil para apresar embarcagoes do inimigo ou praticar qualquer outro genero de hostilidades. Ao uavio que uma vez receber combustivel em nossos portos nao se 148' TEEATY OP WASHINGTON PAPERS ACCOMPANYING permittird novo fornecimeBto seiiao quando houver decorrido nm prazo razoavel, que faga crer que o dito navio regressoii depois de concluidaa sua viagem a urn porto estrangeiro. 2°. E prohibido annunciar pelo telegrapho a partida ou a proxima chegada de algum navio, inercante ou de guerra dos belligerantes ou dar a este qualquer ordem, instrucgoes ou aviso, tendeute a prejudlcar- o inimigo. [606] • *-JSreste sentido V. Ex. dever^ expedir as couTenientes ordens as estagoes dos telegraphos e aos alvigareiros. Aproveito a opportunidade para reiterara V. Ex. as segnrangas de minba perfeita estima e distincta consideracao. VISCOXDE DE S. YICEI^TE, A. 8. Ex. Sr. Fresidente da Provincia de No. 9. Eio DE Janeiro.— MiNisTEKTo dos Negocios Estrangeieos, em 29 DE OUTUBRO DE 1870. No intento de regular o disposto na condigao 5. da circular de 23 de Jaulio de 1863, cumpre que, durante a guerra entre a Franga e a Prussia, sejao observadas as seguintes providencias : I''. Os navios de commercio de urn dos belligerantes, que quizerem sahir do porto, deverao dar aviso por escripto, com a antecedencia de 24 horas, ao commandante da estagao naval do dia e hora em que tem de sarpar. No aviso declararao se sao a vapor ou de vela. 2^*. O commandante da estagao naval, se nao tiver sido prevenido da sa- hida de algum navio de guerra do outro belligerante, mandarainti- [607] mar *aosrespectivos commandantes, que nao poderaodeixar oporto senao depois de passado o tempo da sobre dita condigao 5". Far^ alem disso, os necessarios avisos 4s fortalezas e embarcagoes de registro. 3*. Os ditos navios mercantes nao deverao sarpar sem que tenhao resposta, por escripto, declaratoria de que estao dadas as devidas provi- dencias, e que portanto podem retirarse. A resposta ser4 dada com toda brevidade. 4*. Nos lugares onde nao liouver commandante de estagao naval^ 6 aviso das embarcagoes mercantes ser4 difigido ao capitao do porto ; na falta deste ao commandante da fortaleza de registro ; e, nao haveudo fortaleza, ao de qualquer navio de gaerra brasileiro que ahi se ache; e, em ultimo caso, a maior autoridade policial da localidade. O funccionario a quem o aviso nos sobreditos termos f6r dirigido, 6 o competente para fazer a intimagao aos navios de guerra belligerantes. 5*. Os navios de guerra dos belligerantes, que nao quizerem ter a sua sabida impedida pela retirada successiva das embarcagoes mercantes on de navios de guerra contrarios deverao communicar, com anticipagao de 24 horas nos termos sobreditos, a pretengao da sua retirada. A priori- dade da saluda ser4 regulada pela da entrega do aviso. [608] *6*. Alem do que flea disposta, os navios de guerra nao poderao deixar o porto sem que primeiro entrem as embarcagoes mercantes do outro belligerante, que estejao 4 barra, ou tenhao sido anuunciadas pelo telegrapho, ou pelos alvigareiros, salvo se derem os respectivos commandantes sua palavra de honra ao commandante da estagao naval, e na sua falta ao funccionario competente, de que nao Ihes farao mal algum ; e se, al6m disso, nao estiverem impedidos de sahir por outro motivo. YISC'ONDE DE S. VICENTE. ' COUNTER CASE OF THE UNITED STATES. 149 [609] . *lTo. 10. MEMORANDUM OF QUESTIONS BETWEEN BRAZIL, GERMANY, AND FRANCE. ,A relation of the facts and resum6 of the correspondence between the Brazilian government and the French and North German legations in Brazilj in relation to the alleged violation of the neutrality of Brazil, aEd abuse of the right of asylum accorded by her to the vessels of war, and their prizes, (with a delay of twenty-four hours,) by the bringing into Rio de Janeiro on th^ 14th September, 1870, of the North German merchant- vessels Lucie and Concordia captured by the French gun-boat Hamelin, and left in the harbor of Eio, for the purpose (as alleged) of discharging goods on board belonging to neutrals, (which was done,) and by the leaving said vessels in said harbor, in charge of only one mariner on board of each, taken from another French vessel in port, and under the care of the French consul ; and by the coming in .afterward of the French gun-boat Bruix, from whom men were sent and placed on, and in charge of, said vessels, which were then taken out of the har- bor under convoy of said Bruix, October 22, 1870. — (From the Eelatorio (Foreign affairs,) 1871.) |,610] *0n the 14th of September, 1870, two German merchant-vessels, the Lucie and the Concordia, were by ofl&cers in charge brought into the harbor of Eio as having been captured by the French gun-boat Hamelin, as her prizes of war. The entry of such vessels under such circumstances was permitted by the Brazilian circulars of August 27, 1870, in which reference was made to those of August 1, 1861, and June 23, 1863, and a permission to remain twenty-four hours accorded. The necessity of leaving at the expiration of that period was notified to the commanding officers of the prizes. It appearing, hbwever, that on board of the German vessels were goods of neutrals, the imperial government admitted that, under the principles laid down by the congress of Paris, 1856, more time would have to be allowed, in order to permit the unloading of such neutral goods, and that as soon as this could be effected, the vessels must leave. The German legation at once claimed that Brazil was bound to restore those vessels to their owners and to exclude the JEamelin from the ports of Brazil ; because, 1st. The Concordia had been captured in Brazilian waters, in viola- tion by France of Brazilian neutrality. [611] *2. Because the Hamelin havingleftEio on the 14th August, and returned on the 14th September, had not, in the interval, entered into any French port, nor into any neutral port, but had evidently been lurking' in the ports and under islands off the coast of Brazil. And on the 17th September the same (German) minister claimed the release and restoration of the other vessel (Lucie) on the same grounds. The French legation, on the other hand, declared that the prizes had been taken six miles and sixty meters distant from the Marica Islands, and on the high seas, outside the territorial jurisdiction, and that the Hamelin having left Eio for Montevideo, on the 14th August, had entered the last-named port on the 20th; left there on the 2d September, and returned to Eio on the 13th September. The Brazilian minister of foreign affairs then addressed aletter of in- quiry to the president of the province of Eio de Janeiro, requiring him to make inquiry and take proofs, who" some time afterward" answered that nothing could be proven ; notwithstanding every effort and search, 150 TREATY OF WASHINGTON ^PAPERS ACCOMPANYING up anti down the coast, for persons wlio must have seen the fight or at- tack, (iu case it had taken place so near land as alleged,) and that the Hamelin had not been- in any Brazilian port, and had not been seen hovering on the coast. The Brazilian government therefore con- [612] eluded that there *had been (then) no violation of Brazilian neu- trality by the act of the Hamelin, and that it could not comply with the demand for restoration ; nor for the exclusion of the French capturing vessel from the Brazilian ports, during the continuance of the war. This exclusion was afterward ordered, for other reasons, as stated below. The German legation in Brazil then objected to the admission into Brazilian ports of prizes of German vessels under the above circulars, as of itself a breach of neutrality, which, rightly understood and prac- ticed, would equally exclude all vessels claimed as prize by either bel- ligerent; and especially since the German government had given orders not to capture merchant- vessels belonging to the enemy, by the order of July 18, 1870. The Brazilian government replied that this new rule or order was one which was not obligatory on any power who did not acknowledge its principle, and that no change of the rule of neutrality (which admitted prizes of both belligerents with delay of twenty-four hours) could be accepted, unless admitted by the other belligerent, and agreed to by this government also ; which, when it laid down the rules for conduct to its officers and agents, in its circulars, could not, and did not, know the new exception introduced, or proposed by the German govern- [61 3J mcnt. Besides (as *since appears) the decree of 18th July, 1870, was afterward revoked by another, issued (at Versailles) by the same government, in January, 1871. The (Brazilian) circulars of 1861 and 1863, which were thus objected to by the (Prussian) S". G. government, were objected to also by the French, and for reasons quite as unsound; for (the French charg^ stated) those circulars imijosed restrictions on the freedom of action of the French naval forces. France maintained a large navy ; the Ger- mans none. This last had a large army; the French army was not so, numerous. France thus diverted to the enlargement and maintenance of her navj' large sums, which, in case no such armament existed, might have gone to the increase of her army. That government, therefore, which, by its acts, under form of preserving its own neutrality, Itmitetl or restrained the efforts of the French naval force upon its enemy's commerce, in effect, assisted that enemy. The Brazilian government answered that both France and Germany, by their reclamations, attempted to set up a new rule of neutrality, namely, that a neutral power should formulate the conditions of its neutrality according to the distribution and organization of the land and sea armaments of the respective belligerents. It is needless to point out that the attempt to enforce such a novel regulation [614] * would at once Involve the neutral in the great difficulty (among others) of requiring the condition of neutrality to change with the alternating vicissitudes of war. The Brazilian government, there- fore, would maintain the attitude in which it had placed itself, which was justified by the principles maintained before the outbreak of the Franco-German war, and which had been sustained by' the positions assumed by the French gdvernment and by the dectees in French courts of prize. • >'^ The discharge of merchandise belonging to neutrals on board tfee Jjucie was completed on the 24th September, (1870.) The chief of poltee COUNTER CASE OF THE UNITED STATES. 151 was therefore directed to notify the ofiQcer in charge of that vessel, as well as the officer in charge of the Conpordia,. as soon as she had landed such goods from the cargo ; and the fact of such order having been given was made known also to the French legation in Rio. [At the expiration of the time allowed, and thus prolonged, and not- withstanding the declaration of the French charg6 that the Hamelin (the- captor) would conform to the notice, it was nob complied with. The Hamelin had left the port on the 23d of September, having left on board the two captured vessels in the harbor an insufficient number of men to navigate them. *The German minister at once declared this condition of facts to the Brazilian government, and protested against any attempt to increase the number of men while in this harbor. The French charg6 (iirected the French consul to order the departure of the Lucie, and of the Concordia, as " soon as certain repairs had been made, which were indispensable to the prosecution of her voyage," and asked a further prolongation of time therefor. The Brazilian government declined, stating that the delay of twenty- four hours allowed by the rules of neutrality, and permitted by their .ilustructiAis, could be prolonged only in case of forced arrival, (by stress of weather.) and to discharge goods on board belonging to neutrals. In fact, when the Hamelia left, on the 23d of September, she had placed on board each one of her prizes one man sent by the French consul, and taken. from on board a French merchant ship in the harbor, the Mineiro. Any increase of armament, or addition to their crews, would not be allowed^ (and besides, the Hamelin had already, by taking back on board the prize-masters and crews which she had placed on board those vessels at the moment of capture here, augmented her own crew by an addition, in this port, to the number on board of her when she entered.) [616] * The French consul then (in a note to the chief of police) asked permission to place on board the prizes five men, taken from other French vessels, who should assist only until they had passed the bf^r, and should return in the tug-boat which was to tow them out. The French oharg6, then, also discovered that the second condition (case mentioned and provided for) in the Brazilian circular of 1863 was not applicable to prizes, but only to vessels of war; and that since, before the war, a French merchant vessel would be entitled to engage and receive on board such number of men as might be necessary to continue her voyage, to refuse it now to the Lucie and Concordia (the captured vessels) would be a violation of that admitted right, and asked a further delay, in order to be able (to assure the safe departure) to get the vessels safely to sea. ■ The Brazilian government refused, and said that the prohibition upon new armament or increase of crew applied to such vessels as the Lucie and Concordia, and must, since otherwise any A^essels of war, capturing many merchantmen, and weakening her own force by the distribution among them, from her own company, of prize-master and crews, could •eome into a neutral port, there deposit her prizes in safety, without crews, receive back her own, and again go to sea to repeat such maneu- vers. [617} * It then appeared that the French charg^ was about to per- mit, if not to authorize, the act (declared by the French consul to the chief of police) to tow the prizes out to sea by a French gun- boat, which he had sent for, and asked from the commander of the French naval forces on this station. Whereupon the Brazilian govern- ment notified the French legation that these vessels would not be 152 TREATY OF WASHINGTON — PAPEES ACCOMPANYING permitted to leave this port, even in tow of a French vessel of war ; and this resolution was also made known to the German minister. The French legation, on the 7th October (mark, the prizes had en- tered on the 14th September, and the discharge of goods belonging to neutrals was accomplished by the Lucie 24th September, and the Con- cordia) protested against such order, and said : If Brazil does not wish to receive into her ports vessels captured as prize of war, she should have so declared in her answer to my notification (of the declaration of war between France and North German Union) on the 14th August last, and should, at the time of their coming in, objected to the admission of the Lucie and Concordia.. Once received into this port it would be too late to apply to them rules which were only made known to me on the 16th of September, (after their arrival,) and which could not he allowed to have a retroactive effect. Admiral Fisquet has just written [6181 me that he will send to Eio the 'dispatch-boat Le Bruix to take away the prizes. I therefore beg your excellency will give orders to allow their departure, it being understood that on board the captured vessels there shall be placed no men enlisted or engaged in Eio de Janeiro. The Brazilian government answered with a recapitulation of dates, and a narration of occurrences in this matter, and stated that the Hamelin had come in with her prizes, under the privilege accorded to belligerents by a neutral power, and was, therefore, to be held to strict compliance with the requirements and conditions of such pel mission ; that the time for stay, limited to twenty-four hours, was known to the commander of the Hamelin before his arrival ; that such stay was pro- longed simply for the benefit of those neutrals whose goods were laden on the prizes ; that the Hamelin had departed, with persons on board taken from the prizes, (French, and of her own crew,) and that these prizes had. In fact, remained long beyond the time allowed, and because the captors had not placed on board a crew sufficient to take charge of them ; that the French commander had gone out to communicate, prob- ably, with the admiral, and to bring from the fleet aid to make valid the possession of the prizes, which aid it was proposed to put on board (though not recruited) within this harbor; that thus, in fact [619] *and effect, there had been either an abandonment of prize in this port, or else there was an attempt to make a neutral port a place of deposit for the safe-keeping of vessels captured, and before, and in delay of, their being adjudged good prize of war by a competent tribunal ; that by all this a violation of the neutralit^y of Brazil had occurred ; but that this government (Brazil) would proceed only after .consultation of the council of state ; that, under these circumstances, the departure of Le Bruix could not be allowed with those vessels. Orders were, on the 10th October, issued to the captain of the port to take precautionary measures to prevent any accident, and this was notified to the French legation. On the 11th that legation answered that it persisted in considering the captured vessels good prize, until it was otherwise declared by a competent court (conseil de prises;) that, in order to take away any pretext (sic) from the Brazilian government's undertaking to assume possession of the two vessels, he had asked the commandant of Le Bruix to place on board (in this harbor, of course) a crew sufficient for handling the vessels in the port, and to prevent an accident (by reason of swinging at anchor among other vessels ;) that the Bruix would, at once, get ready to take these prizes to sea; and [620] that, if his (your) excellency wished to *assurae the great respon- sibility of preventing such departure by force, his excellency had only to give order to the forts to fire upon the vessel. The Bruix will stop at the first gun. The French government will afterward decide how this act of hostility by the Brazilian government' shall be responded to. The Brazilian government answered, by informing the COUNTER CASE OF THE UNITED STATES, 153 french legation, that on next day (14th October) a guard would be placed on board, the two vessels, Lucie and Concordia, and an inventory taken iu presence of Brazilian agents, and of the French consul, if he chose to be present. The French dispatch-boat Bruix came into port on the 13th October, and the French consul was notified by the chief of police that no persons could be placed on board the prizes from the Bruix. Nevertheless, a number of men from the Bruix were placed on board those two vessels, and preparations made to depart with them. Against this the Yiscouut Sao Vicente (Brazil) protested, as a new violation of neutrality and of the police of the port. The German minister (Mr. de St. Pierre) also pro- tested to the Brazilian government against such action being permitted, and against the departure of the captured vessels. The report of the minister of foreign relations then states that the iinal resolution taken by the Brazilian government was made [621] known to both *legations as follows : •The imperial government liaviug duly considered the means of making available its ■rightSj has preferred those which conform to its own regulations, and the principles acknpwledged iu the law of nations, and with usages which prevail. It therefore de- clares to M,,le charg6 d'affaires : 1. That the steamer Hamelin will not he admitted into any port of the empire here- after during the war between Prance and Prussia, and orders will be sfeut, to secure that end, to the different ports and officers. 2. That the imperial government protests to and will claim from the French govern- ment the proper reparation for the violation of its rights of sovereignty in relation to asylum and neutrality, and for the consequence therefrom resulting. 3. That to this end orders will be given, so that the prizes above mentioned can de- part from this port with the crews improperly placed on. board them from the Bruix. They must depart within twenty-four hours, dated from the notice which will be sent to-day to the commander of the Bruix. It must also be noticed that since a German (sailing) merchantman left this port to-day at 2 o'clock, the Bruix canuot be allowed to depart until after the expiration of the seventy-two hours prescribed by the 5th (condition) case provided for in the circular of 33d June, 1863. [622] *The French charg6 protested against the exclusion of the Hamelin because, in his judgment, that vessel had brought her prizes into Rio only out of consideration for, and for the purpose of, ' discharging the merchandise on board such prizes belonging to neu- trals. The German minister protested anew against the permitted departure of the German vessels as prizes of the French vessel of war, and said "he would inform his government of the unsatisfactory result of his efforts to obtain from Brazil a decision in those respects in accordance with the duties of a neutral state.'' In connection with this, a question afterward arose as to the proper parties to whom should be paid the freight due by the (neutral) owners of goods landed here from these two German vessels. The French charge submitted this question to his government, which answered that the (French) consul should deliver the goods to such neutral owners who would sign a declaration obliging themselves to pay the amount of the freight to the French government, if it should, after an understand- ing with Brazil, decide that it was due to the captor. The French charge had complained that the North German consul had made a visit and search on board the two vessels, going in [623] his uniform, and in a *boat having his flag hoisted,and at the mo- ment when the crew in charge had retired, after discharging neutral goods, and while a guard (one man) only had remained on each vessel. The Brazilian government objected to the proceeding by the North 154 TEEATY OF WASHINGTON PAPERS ACCOMPANYING Qerman consul, and tlie North German minister explained it in the following manner : The consul, Mr. Hanpt, for reasons of dtity, havingto visit the German vessel Fetisdil, anohoredin this port, and passing on his way to that vessel the L.uole and the Con- cordia, thought he would, on his way, ask the two French sailors belonging to the Mineiro and the Brazilian of&Oer (employiS) some questions in relation to those two vessels, Lucie and Qoucordia. He did not go on board, as alleged. » [624] FEENCH PASSPOETS TO PEESOSfS EBORUITBD I¥ EJO FOE THE PEBKCH MILITAET SEEVICE NOT VrSfiB* BY THE POLICE HERETO PEEVENT DEPAETUEE OP SUCH PEESONS, Eighteen passports, vis6d here on the 17th October, 1870, by the French consul in Eio de Janeiro, and having on them stated in the vise that the bearer of such passport was "engaged to enter the military service of Prance, and was held to present himself to the proper author- ity," were presented at the office of the chief of police in Eio, in order to have issued the corresponding permit of departure. The chief of police re- fused to grant the pase to the bearers of such passports, and his action was approved by the Brazilian government, who directed him to inform the French consul that such recruitments or engagenients to enlist, made here, on neutral territory, were in violation of the laws arid neutra-lity of Brazil, and that such persons so enlisted could not be allowed to de- part. [625] *MEMOEANDA AS TO THE MIEANDA EXPEDITION Though projects of hostility, some of them for plunder, some for per- manent conquest, had been undertaken during the wars between this country and Spain, against jjarticular parts of her transatlantic domin- ions, the first time, we believe, that a general scheme of emancipation was presented to the mind of a British minister was in the beginning of 1790, when the measure was proposed to Mr. Pitt by General Miranda. It met from that minister with the most cordial reception ; and as the dispute respecting isTootka Sound was then subsisting, it was resolved, if Spain did not prevent hostilities by submission, to carry the plan into immediate execution. When an accommodation was effected and peace at last decreed, Mr. Pitt still assured the general that the scheme of emancipating South America was a measure that would not be lost sight of, but would infal- libly engage the attention of every minister of this country. — (See page 13, "Documents Historical" and Explanatory," cqncerning the several ' [626] expeditions of General *Miranda, by T. M. Ontepara. London, ■ 1810.) ; ^ ^ r Hxtracts from Dodsley^s Annual Register for 1801. I * * * General Miranda, with the knowledge and a good undefc , standing between him and the British government, set out from Englanln for the purpose of carrying into execution, if possible, his long-cherisheij I)roject of emancipating Spanish America. COUNTER CASE OP THE UNITED STATES. 155 ' He proceeded to the United States of America for tlie purpose of pro- curing that assistance, which, from the assurance he had received while in this country, he had every reason to expect, particularly at a period when there was every prospect of a war between the United States and ppain, on account of a dispute about Louisiana. But on his arrival he iiad the mortification to find that the dispute about Louisiana was com- promised, and that although the wishes of the American, like those of the British government, were for him, he could not expect their avowed assistance. The general, however, animated by that persevering ardor which is inspired in great minds by great designs, induced, on terms agreed on, Mr. Ogden, a merchant of New York, to fit out a ship, the Leander, Captain Lewis, with two hundred young men of great respect- ability, who volunteered their services, and to proceed with her [627] to St. Domingo for the purpose of being joined by a *secorid vessel, the Emperor, commanded by another Captain Lewis, brother to the master^ of the Leander. Unfortunately, soon after the departure of the Leander from New York, the American Government, giving way to the urgent solicitations of the French and Spanish embassadors, brought an action against Mr. Ogden and a Colonel Smith, a zealous friend to the cause of General Miranda, on the plea that the equipment of the Leander was unauthorized and illegal. The parties prosecuted were honorably acquitted. But the first consequences of the trial were of incalculable detriment to General Miranda's expedition, for the master of the Emperor having heard, while at St. Domingo, that an action had been brought against the parties just mentioned, absolutely refused to proceed on its destination. It now became necessary to engage, instead of the Emperor, two small schooners. The general, however, though thus cruelly disappointed in the expectation of being joined by the armed ship Emperor, of about thirty guns, proceeded with his little squadron for the coast of Caracas ; where, as he supposed that the Spanish government still continued ignorant of his movement, he hoped to effect a landing without opposition. The Spanish embassador, however, having obtained information of this enterprise, sent advice thereof to the governor of Caracas, |;628] where. General Miranda, *instead of meeting, as he expected, with none but friends, apprised of his approach, had the mortifi- cation to learn that the government of Caracas had given the neces- sary orders for taking measures of defense, and where his two schooners unfortunately fell into the hands of the Spanish guardacostas. In these circumstances General Miranda sailed directly for Trinidad, for the pur- pose of procuring a British auxiliary force. Admiral Cochrane, then commanding on the Windward station, assured the general of support, in both ships and men, and immediately ordered some sloops-of-war and gun-boats to proceed with liim on the expedition. Thus re-inforced at Trinidad, the general set sail from thence, on the 24th of July, 1806, again for the coast of Caracas with his 'little fleet, now consisting of about fifteen vessels in all, and having on board about five hundred officers and men, all volunteers. On the morning of the 2d of August his little army effected its landing at a place called Vela de Coro ; but the smallness of his force prevented confidence in his success. The people dreaded the cruel vengeance of the Spanish government in the event of his defeat; and as the captain-general of Caracas was collecting troops. General Miranda retired from Coro and removed his headquarters ! to the shore, having previously assured the peoplein a proclamatioji [629] of his just and friendly intentions, *and that "it was not in the city but in the field that he and his army wished to fight with the op- 156 TEEAIT OP WASHIKGTOK — ^PAPERS ACCOMPANYING pressors alone of the Oolombiau people."' From thence General Miranda dispatched an officer, Captain Ledlie, to our naval and military com- manders on the Jamaica station to represent his prospects, the absolute necessity there was for a force sufficient to give confidence to the South American people, and to request that this aid might be sent to him ■without delay. Sir Eyre Coote and Admiral Dacres regretted that they were precluded from giving the assistance which his views demanded, as they had not received any official instructions from home on this subject. Admiral Dacres, however, gave orders to his cruisers to afford every possible protection. Captain Ledlie immediately returned with this answer to General Miranda, 'w'ho, after dispatching that officer to Jamaica, had proceeded himself with his troops to Aruba, a few leagues from Vela de Coro, with an intention to seize the strong post of Eio de la Hache, and there await the arrival of succor. Soon after Admiral Cochrane sent him a ship of the line with two frigates, with the reiter- ated assurances of support ; but erroneous reports having reached the West Indies that preliminaries of peace between England and France had been signed by Lauderdale at Paris, and these reports ac- [630] companied with *an intimation that Admiral Cochrane would consequently be obliged to entirely withdraw the aid of the naval force. General Miranda found himself under the necessity of abandoning all further operations on the Spanish main, and retired, with his comrades in arms, to Trinidad. — (See the Annual JBegister for 1807; London, 1809.) [631] *Adniiral Cochrane to General Miranda. NOETHUMBEELAND, CAELISLE BAY, Barbadoes, June 9, 1806. SiE : Whereas you have represented to me that, in carrying into effect the expedition under your command, you have met with some difficulty from the defection of the force you expected to join at St. Domingo ; and conceiving it may be mutually advantageous to Great Britain and the provinces of South America, which you are about to attempt to liberate from the dominion of Spain, and having received your statement of the various plans that, from time to time, have been in agitation between you and the British ministry, in all of which the same object has been kept in view, bub, from particular circumstances incident to the moment, they have not yet been carried into effect : In consideration thereof, and judging that I may thereby promote what seems to have commanded the attention of the British govern- ment, I agree to support your landing in any part of America between Trinidad and the coast opposite to the island of Aruba, with such a ]iaval force as I can afford, which will be at least a sloop-of-war and two brigs, and perhaps a frigate, if one can be spared from the atteu- [632] tion I must necessarily *give to the convoys and protection of the colonies within the district of my command. I do, however, assure you of such further support as it may be in my power occasion- ally to give, and, should a. Spanish uaval force arrive in those seas, I will use my best endeavors to prevent them doing any injury. At the same time I am free to confess that, while I grant you such essential support, and the permission you have received to recruit your force here as well as at Trinidad, I do expect that, in the event of your be- ing successful, and any of the provinces on the main become inde- pendent of Spain, that you engage, in their name, to grant to Great COUNTER CASE OF THE UNITED STATES. 157 Britain positively, and to no other power, (the United States of America excepted, if you should so incline,) the same privileges of trade as the inhabitants of the said provinces ; that is to say, that the vessels be- longing to or subject to any other power or state, who are not now giv- ing aid to this expedition, shall not enjoy the same immunities with Great Britain, and that they shall be subject to an additional duty of ten'per cent, on all goods that they either import or export over and above that to be paid by Great Britain, and that none of the coalesced powers acting against Great Britain, or that may hereafter become so during the present war, shall be permitted to enter or trade -witli any of the ports of the said provinces ; that this agreement shall sub- [633] sist and be *enforced until a treaty of commerce shall be con- cluded between Great Britain and the provinces so liberated from the Spanish government, for which purpose commi^:sioners shall be nominated by each party within twelve months after the definitive treaty between Great Britain and the powers now at war with her shall be signed. It is further agreed that British subjects shall, in every instance, be assisted by the government of -the said provinces in the recovery of their legal and just debts, and that, in security thereof, they shall hold lands, houses, or estates, under the same privileges with the natives of the said provinces ; and that they shall be suffered to sell and dispose of the said property, both real and personal, in like manner with them, and that, in so doing, they shall not be subject to any tax, duty, or im- position whatever. It is also to be understood that consuls or vice-consuls may be ap- pointed to such provinces, cities, towns, &c., as the British government may think proper, enjoying every privilege or immunity now granted to consuls belonging to Great Britain by the most favored nations of Europe. I have the honor to be, sir, your most obedient, humble servant, A. COGHEANE. General Mikanda, &c., &c. [634] * General Miranda to Admiral Cochrane. Babbadges, June 9, 1806. Sir : Having^ deliberately perused the foregoing proposals, I hereby bind and oblige myself, as far as ray authority can extend, to see the same carried into execution ; and that, to all intents and purposes, the same shall be ratified and made binding on those provinces that may become independent of Spain. I have the honor to be, sir, your most obedient, humble servant, - F. DE MIEAMDA. Eear- Admiral the Hoin. A. Cochrane, Oommander-in-CMef, (&c., (&c., Barbadoes, [635] * Extraets from the History of Don Francisco de Miranda's attempt to effect a revolution in /South America. Boston, 1808. » » * # * 12th, 8 o'clock a., m. — At this moment a cry from a man stationed at the mast-head announces a sail in sight; she is too far distant, however, to enable us to distinguish what kind of vessel. I 168 TEEATY OF WASHINGTON — PAPERS ACCOMPANYING notice it creates considerable anxiety on board, particularly with the general. We shall probably kuow something more of this strange sail before long, as she is sailing nearly ia a line with us ; is somewhat to leeward, but if disposed, may speak us in two or three hours. 11 o'clock a. m, — The strange vessel turns out to be a, large vessel in pursuit of us. Captain Lewis has shortened sail to let her come up. If she is French or Spanish, she will probably speak to us in harsh language, and we shall be obliged to fight. G-od knows what our fate would be if cap- tured, for I believe we must appear to them a suspicious set, who are on the high seas in a very questionable shape. If she is English, per^ haps " all may be well." I must conclude, as we are going to pre- [636] pare *for action. Our sea commander says, "If she is an enemy we must overcome or perish." 13th. — The affair is settled very much to our satisfaction ; but not without a thousand alternate hopes and fears. Within four hours after my last, we expected to be now making the best of our way to Ber- muda, under the lee of a British frigate. Yesterday, at half past one o'clock in the afternoon, we were spoke by the ship seen in the morn- ing ; she proved to be His Britannic Majesty's ship Cleopatra, of forty guns, commanded by Captain John Wight. The first lieutenant of the' frigate came on board and examined our ship and crew. We were detained nearly twenty-four hours, and had nineteen men pressed, mostly Irish, with American protections. As a kind of return for the impressed sailors, we received twelve Americans, who had been taken out of American vessels lately captured by the Cleopatra, to the list of which the Leander was nigh being added. Captain Lewis went oii board with the .'^ hip's papers, which showed her to be the Leander, an American ship bound to St. Domingo. These were, on examination, declared by Captain Wight to be unsatisfactory. [637] A gentleman then by the name of Armstrong *went on board with instructions from the general, and joined with Lewis in expos- tulating with the commander of the frigate, but without effect. At last the general himself was obliged to appear on board the Cleopatra. He stated certain particulars to Captain Wight, and showed him documents which justified the English captain in allowing our ship to proceed. This event has confirmed our impressions respecting the nature and objects of this expedition. General Miranda, I think, must have effected the release of the Leander by explaining a part or the whole of his plan relative to South America, and by producing credentials from the Brit- ish government authorizing, or at least protecting him in the under- taking. This idea is strengthened by Miranda saying that Captain Wight had promised to assist in the enterprise. The general remained on board the frigate all night, and returned this morning at eleven o'clock. I am extremely glad we were overtaken by this ship, for the result tends to put us at ease about the consistency of our design with the laws of nations, and proves to the world that we are not a " band of desperate pirates," a description given to us by some persons before we sailed from New York, and propagated afterwards in whispers through the ship. Besides, the expedition is now placed on a respectable footing Ijy ; [638] *having, as we presume, the acknowledgment and countenance of England. We are all in high spirits and in high hopes. The gen- eral now speaks more openly about the enterprise ; he expresses great .; anxiety to begin his operations, and complains of having been so long detained in a good wind, notwithstanding it has turned out so much, to the advantage of his project, both on account of the promised assistance, COUNTER CASE OF THE UNITED STATES. 159 and a- certificate that he procured of Captain Wight, to prevent further search or detention by other British cruisers which we may happen to meet.— (Pages- 10^ 11, 13, 13.) [639] *Gkenada, May 20, 180G. ***** On the 24th, at evening, we saw two ves- sels, one a large ship, which we endeavored to avoid by tacking ; but tiie next morning the same ship being found in chase of us, it was re- solved to run no more. It was at length admitted that we might as well die by sword as famine. When the Ship had got nearly within gunshot, we being to windward did not bear down, and she iired upon us, but without her shot reaching us. Lewis, being persuaded she was English, hove to and she came np. Seeing a French distinguishing vane at her mast-head, we began to flutter. But. on speaking us, she proved to be His Britannic Majesty's sloop of war Lily, who had been for some time searching for the Leander. The commander. Captain Campbell, came on "board to pay his compliments to General Miranda, and on returning to his vessel sent us some most necessary and most welcome supplies. It was determined that we should put into this island, where we arrived the next day. The general and suite disem- barked the moment the ship anchored ; and several officers were allowed to step on terra firma and partake the comforts of the shore. * * * The governor of this island, Maitland, has received our chief with great politeness and hospitality, and given him encouragement to expect important assistance from the British in a second attempt upon the Spanish main. As an earnest he is answerable for our supplies. [640] *These circumstances a little revive the spirits of our volunteers, who had become rather sick of their undertaking and disposed to abandon Miranda. — (Pages 92-94.) Bkidgetown, Baebadoes, June 9, 1806. * * * * We arrived here the 6th. The rumor among us is such as to make us suppose the expedition is to raise its head again. Admiral Cochrane, who is on this station with three ships of the line and several frigates, intends to further it by putting some of his smaller vessels under the orders of Miranda. ]S"o regular troops and but few volunteers will be joined to it here ; but it is said they will be obtained at Trinidad. , 15th. It is reported that though Admiral Cochrane is favorable. Lord Seaforth, governor of this island, and General Bowyer, commander-in- chief of the West India troops, are not at all inclined to take up our enterprise. Twenty-five or thirty volunteers have joined us here. In this number may be half a dozen gentlemen; the rest, I fear, must pass for vagabonds. ***** (Page 95.) [641] * * * *Admiral Cochrane undoubtedly intended to give him all the chance that a sufficient naval force could supply. In proof of this, several armed vessels, including one seventy -four, were sent to support the squadron first put under his orders and supposed to be at Cow, with directions to land a number of men, as they might 160 TEEATY OF WASHINGTON — PAPERS ACCOMPANYING be found necessary and useful ; but finding that we had departed in an unaccountable manner, tbey have naturally concluded that he is un- equal to his enterprise and is dot worth supjiorting. It is not surprising that their orders should not extend to conducting him from one part to another of the Caribbean Sea, or to assist in a second attempt on the main when he had made such a. faux pas in the first. Undoubtedly they are ready to seize the pretext which they now have for dissolving a connection attended with expense to the government and mortification to its patrons ; satisfied that they do more than justice to his claims in conveying him to a place of safety. # * # (Page 175.) Tbinidad, November 26, 1806. * * * * Our reception and treatment in this island are naturally very different from what we experienced when we were here before. At that time, notwithstanding the influence of a numerous French and Spanish party, opposed to our scheme, of course, [642] the governor espoused it.; knowing *that it had received en- couragement from higher authorities than himself. The govern- ment house was given to Miranda for his residence, and took the name of headquarters. The governor and officers, civil and military, paid him the respect which corresponded to' the rank he claimed. He re- ceived many visits, and his design many good wishes and benedictions from merchants and others, though after some time, as we delayed long there were signs of distrust ; and the popularity of our project was not sufficient to procure any considerable quantity of supplies or number of men without money. The means which were presented to Miranda, by the offer of merchants already mentioned, he thought proper to re- ject. ******* (Page 217.) [043] *ror correspondence relative to the prevention in the ports of the United States of vessels alleged to be fitting out to cruise against the commerce of France in 1864, see vol. 7, Claims of United States against Great Britain, pages 39-42. CASE OF THE METEOR AND ORIENTAL. Mr. Bickimon, district attdrney, to Mr. Hunter, Acting Secretary of State. [Telegram."! Office United States Military Telegraph, War Department, ■ Weio York, January 24, 1866. Sir : Upon information and evidence furnished by the Spanish consul that the ship Meteor is being fitted out, and is about to sail from this port with intent that she should be employed or cruise in the service i)f Chili against the commerce of Spain, I have caused her to be libeled and detained. Has the Department of State any suggestions or instruc- tions ? D. S. DICKINSON, United States District Attorney. Wm. Hunter, Esq., Acting Secretary of State. COUNTER CASE OF THE UNITED STATES. 161 [644] *Mr. Munter, Acting Secretary of State, to Mr. Bidkinaan, district attorney. [Telegram.] Washington, January 25, 1866. D. S. Dickinson, United States Attorney, New TorJc : Your telegram of yesterday reached here too late in the evening to be • then answered. At present no suggestions or instructions from this department relative to the case of the Meteor are deemed necessary. W. HUNTER. Mr. Dichinson, district attorney, to Mr. Seward, Secretary of State. Office of the District Attoenet of the U. S. FOK THE Southern District of jSTew York, New York, February 17, 1866. Sir : I have the honor to report in the case of Benjamin ¥. Mackenna, indicted for a breach of the neutrality laws, &c., that on the 14th instant he- appeared in court, and, in the language of his counsel, "waived his diplomatic privilege," and pleaded to the indictment upon the merits. In other words, he withdrew his plea of alleged diplomatic relations, which relations I was prepared to show by documents, so promptly and courteously furnished me from the State Department, had no exist- ence. [645] Estebau Eogers, the Chilian consul, indicted *for a similar offense, pleaded to the* indictment without any suggestion of privilege, although at the time he evidently had not been advised that his exequatur had been revoked by the President. Both cases stand over for trial in March next, and the defendants have given bail for their appearance. I have the honor to be, sir, yours, &c., D. S. DICKmSON", United States District Attorney. Hon. Wm. H. Sewaed, Secretary of State. Mr. Seward, Secretary of State, to Mr. DicTcinson, district attorney. Department of State, Washington, March 31, 1866. Sir: Pursuant to the request contained in your letter of yesterday's date, I herewith transmit a certified copy of an ofBicial paper on file in this Department, relative to the existence of a state of war between Spain and Chili. I ara, sir, yours, &c., WILLIAM H. SEWAED. D. S. Dickinson, Esq., United States District Attorney, 2{ew Yorlc. II A— n 162 TREATY OF WASHINGTON — PAPERS ACCOMPANYING Mr. Seward, Secretary of State, to Mr. McCulloch, Secretary of Treasury. Department of State, Washington, April 10, 1866. Sir : At the instance of Mr. Tassara, the Spanish minister, I [646] will thank you to cause a vessel *callecl La Orientale, which is at pier No. 33, Korth Eiver, New York, which is advertised for Mon- tevideo, and which is supposed to be intended for the Chilian service, to be detained for examination. It is advisable that the order for this purpose should be sent by telegraph, as the vessel is to sail to-morrow or the day after. I have the honor to be, sir, yours, &c., WILLIAM H. SEWARD. Hon. H. McOuLLOCH, Secretary of the Treasury. Mr. McCulloch, Secretary of Treasury, to Mr. Seward, Secretary of State. Treasury Department, Washington, April 11, 1866. Sir: I have the honor to acknowledge the receipt of your communi- cation of the 10th instant, requesting that the vessel called the La Orientale, advertised for Montevideo, be detained at New York for exam- ination. In accordance with such request, the following telegram was forth- with transmitted to the collector at New York : Detain vessel called La Orientale, whicli is at pier No. 33, Nortli River, and adver- tised for Montevideo, and await instructions from tbis Department. I will thank you to inform me at the earliest practicable moment what further action, if any, is required from this Department in the matter. [647] *I am, yours, &c., HUGH Mcculloch, Secretary of the Treasury. Hon. Wm. H. Seward, Secretary of State. Mr. Seward, Secretary of State, to Mr. DicUnson, district attorney. Department of State, Washingt07i, April 11, 1866. Sir : I inclose a translation of a note of yesterday, addressed to this Department by Mr. Tassara, the Spanish minister here, on the subject of a vessel at New York called La Orientale, which, supposing hfer to be intended for the service of the republic of Chili, he requests may be detained for examination. The request has been made known to the Secretary of the Treasury, who is understood to have complied withjt. You w;ill cause the proper examination to be made, and if it should COUNTER CASE OP THE UNITED STATES. 163 >fresiilt in sufiScierit cause tlierefor, the vessel aud any parties concerned may be judicially proceeded against. I am, sir, your obedient servant, WILLIAM H. SEWARD, Daniel S. Dickinson, Esq., Attorney of the United States for the /Southern District of New YorJc. [648] *Mr. Sewari, Secretary of State, to Mr. Tassara, Spanish tniwister Department op State, Washington, April 11, 1866. The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of Mr. Tassara's note of yesterday's date, relative to the vessel called La Orientale, and alleged to be of a suspicious character, now lying at the port of New York, and advertised to sail for Montevideo, but really, according to Mr. Tassara's belief, for service in the cause X)f the Chilian government. In reply the undersigned has the honor to inform Mr. Tassara that his request for the detention of the vessel referred to until her real des- tination can be made clear has been complied with. The undersigned offers to Mr. Tassara on this occasion renewed assur- ances of his very high consideration. WILLIAM H. SEWARD. Senor Don Gabriel Garcia t Tassara, <§e., <&c., <&c. [649] *GENERAL TABLE OF CONTENTS. Neutrality laws of Denmark. Neutrality laws of Prussia. Neutrality laws of Russia. Neutrality laws of Netherlands. Neutrality laws of Sweden. Neutrality proclamations, &c., of Brazil. Memoranda relative to Miranda Expedition. Case of the Meteor and Oriental. [650, 651] *THE MERCHANT SHIPPING ACT, 1854. [Extracts*] ANNO DBCIMO SBPTIMO ET DECIMO OCTAVO VICTOKl^ BEGINS. Chap. CIV.— AN ACT to amend and consolidate the acta relating to merchant-ship ping.— [10 August, 1854.] ******* 1. This act may be cited for all purposes as " The Merchant Shipping Act, 1854." 164 TREATY OF WASHINGTON — PAPERS ACCOMPANYING 2. In the construction and for the purposes of this act (if not incon- sistent with the context or subject-matter) the following- terms shall have the respective meanings hereinafter assigned to them ; that is to say: ***** '' The treasury" shall mean the commissioners of Her Majesty's treas- ury. "The admiralty" shall mean the lord high admiral or the commis- sioners for executing his office. " The board of trade" shall mean the lords of the committee of privy council appointed for the consideration of matters relating to trade and foreign plantations. ******* [652] 6. The board of trade shall be the department *to undertake the general superintendence of matters relating to merchant- ships and seamen, and shall be authorized to carry into execution the provis- ions 'Of this act, and of all other acts relating to merchant-ships and seamen in force for the time being, other than such acts as relate to the revenue. ***** 12. All consular officers, and all officers of customs abroad, and all local marine boards and shipping-masters shall make and send to the board of trade such returns or reports on any matter relating to British merchant shipping or seamen as such board requires ; and all shipping- In^sters shall, whenever required by the board of trade, produce to such boai;d or to its ofiBcers all official log-books and other documents which, in pursuance of this act, are delivered to them. 13. Every officer of the board of trade, and every commissioned officer of any of Her Majesty's ships on full pay, and every British consular officer, and the registrar-general of seamen and his assistant, and every chief officer of customs in any place in Her Majesty's dominions, and every shipping master may, in cases where he has reason to suspect that the provisions "of this act or the laws for the time being relating to mer- chant seamen and to navigation are not complied with, exercise the fol- lowing powers, that is to say : [653] *He may require the owner, master, or any of the crew of any British ship to'yroduce any official log-books or other documents relating to such crew or any member thereof in their respective posses- sion or control. He may require any sucb. master to produce a list of all persons on board his ship, and take copies of such official log-books, or documents, or of any part thereof. He may muster the crew of any such ship. He may summon the master to appear and give any explanation con- cerning such ship or her crew, or the said official log-books or documents. And if, upon requisition duly made by any person so authorized in that behalf as aforesaid, any person r-efuses or neglects to produce any such official log-book or document as he is hereinbefore required to produce, or to allow the same to be inspected or copied as aforesaid, or impedes any such muster of a crew as aforesaid, or refuses or neglects to give any explanation which he is hereinbefore required to give, or knowingly misleads or deceives any person hereinbefore authorized to demand any such explanation, he shall for each such oiiense incur a penalty not ex- ceeding twenty pounds. 14. The board of trade may, from time to time, whenever it seems ex- pedient to them ^0 to do, appoint any person as an inspector, to [654] report to *them upon the following matters ; that is to say : (1.) Upon the nature and causes of any accident or damage, COUNTEE CASE OF THE UNITED STATES. 165 which any ship has sustained or caused, or is alleged to have sustained or caused. (2.) Whether the provisions of this act, or any regulations made under or by virtue of this act, have been complied with. (3.) Whether the hull and machinery of any steamship are sufficient and in good condition. 15. Every such inspector as aforesaid shall have the following pow- ers ; that is to say : (1.) He may go on board any ship, and may inspect the same or any part thereof, or any of the machinery, boats, equipments or articles on board thereof to which the provisions of this act apply, not unnecessa- rily detaining or delaying her from proceeding on any voyage. (2.) He may enter and inspect any premises the entry or inspection of which appears to him to be requisite for the i)urpose of the report which he is directed to make. (3.) He may, by summons under his hand, require the attendance of all such persons as he thinks fit to call before him and examine for such purpose, and may require answers or returns to any inquiries be thinks fit to make. [655] (4.) He may require and enforce the production of *all books, papers or documents which he considers important for such pur-- pose. (5.) He may administer oaths, or may, in lieu of requiring or admin- istering an oath, require every person examined by him to make and subscribe a declaration of the truth of the statements made by him in his examination. And everj' witness so summoned as aforesaid shall be allowed such expenses as would be allowed to any witness attending on subpoena to give evidence before any court of record, or if in Scotland, to any wit- ness attending on citation the court of justiciary ; and in case of any dispute as to the amount of such expenses the same shall be referred by the inspector to one of the masters of Her Majesty's Court of Queen's Bench in England or Ireland, or to the Queen's and lord treasurer's remembrancer in Scotland, who, on a request made to him for that pur- pose under the hand of the said inspector, shall ascertain and certify the proper amoiint of such expenses ; and every person who refuses to attend as a witness before any such inspector, after having been re- quired so to do in the manner hereby directed, and after having had a tender made to him of the expenses, if any, to which he is entitled as afore- said, or who refuses or neglects to make any answer, or to give any [656] return, or to produce any document in his possession, or *to make or subscribe any declarations which any such inspector is hereby empowered to require, shall for each such offense incur a penalty not exceeding ten pounds-. 16. Every person who willfully impedes any such inspector appointed by the board of trade, as aforesaid, in the execution of his duty, whe- ther on board any ship or elsewhere, shall incur a penalty not exceed- ing ten pounds, and inay be seized and detained by such inspector or other person or by any person or persons whom he may call to his as- sistance, until such offender can be conveniently taken before some jus- tice of the peace or other officer having proper jurisdiction. * * DESCEIPTION AND OWNERSHIP OF BRITISH SHIPS. 18. No ship shall be deemed to be a British ship unless she belongs wholly to owners of the following description ; that is to say : 166 TREATY OF WASHINGTON — PAPERS ACCOMPANYING (1.) Natural-born British subjects : Provided that no natural-born subject, who has taken the oath of al- legiance to any foreign sovereign or state, shall be entitled to be such o-wner as aforesaid, unles he has, subsequently to taking such last-men- tioned oath, taken the oath of allegiance to Her Majesty, and is and continues to be during the whole period of his so being an owner [657] resident in someplace within Her Majesty's dominions ; *or if not so resident, member of a British factory or partner in a house actually carrying on business in the United Kingdom or in some other place within Her Majesty's dominion. (2.) Persons made denizens by letters of denization or naturalized by or pursuant to any act of the imperial legislature, or by or pursuant to any act or ordinance of the proper legislative authority in any British possession : Provided, that such persons are and continue to be during the whole period of their so being owners resident in some place within Her Ma- jesty's dominions ; or if not so resident, members of a British factory or partners in a house actually carrying on business in the United King- dom or in some other place within Her Majesty's dominions, and have taken the oath of allegiance to Her Majesty subsequently to the period of their being so made denizens or naturalized. (3.) Bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession. 19. Every British ship must be registered in manner hereinafter men- tioned, except — [658] (1.) Ships duly registered before this act comes *into operation. (2.) Ships not exceeding fifteen tons burden employed soleyin navigation on the rivers or coasts of the United Kingdom, or on the rivers or coasts of some British possession within which the managing owners of such ships are resident. (3.) Ships not exceeding thirty tons burden, and not having a whole or fixed deck, and employed solely in fishing or trading coastwise on the shores of Newfoundland or parts adjacent thereto, or in the Gulf of St. Lawrence, or on such portions of the coasts of Canada, Nova Scotia, or New Brunswick as lie bordering on such gulf. And no ship hereby required to be registered shall, unless registered,, be recognized as a British ship ; and no officer of customs shall grant a clearance or transire to any ship hereby required to be registered for the purpose, of enabling her to proceed to sea as a British ship, unless the master of such ship, upon being required so to do, produces to him such certificate of registry as is hereinafter mentioned; and if such ship attempts to proceed to sea as a British ship without a clearance or transire, such officer may detain such ship until such certificate is pro- duced to him. * # # * # 29. The commissioners of* customs may, with the sanction of [659] the treasury, appoint such persons to *superintend the survey and admeasurement of ships as they think fit ; and may, with the ap- proval of the board of trade, make such regulations for that purpose as may be necessary; and also, with the like approval, make such modifi- cations and alterations as from time to time become necessary in the ton-, nage rules hereby prescribed, in order to thje more accurate and uniform application thereof, and the effectual carrying out of the principle of admeasurement therein adopted. COUNTER CASE OP THE UNITED STATES. 167 EEGISTRY OF BRITISH SHIPS. 30.' The following persons are required to register British ships, and shall be deemed registrars for the purposes of this act ; that is to say : (1.) At any port or other place in the United Kingdom or Isle of Man approved by the commissioners of customs for the registry of ships, the collector, comptroller, or other principal officer of customs for the time being. (2.) In the islands of Guernsey and Jersey, the principal officers of Her Majesty's customs, together with the governor, lieutenant-governor, or other person administering the government, of such islands respect- ively. (3.) In Malta, Gibraltar, and Heligoland, the governor, lieutenant- governor, or other person administering the government of such places respectively. (4.) At any port or place so approved as aforesaid within the [660] limits of the charter but not under the *government of the East India Company, and at which no custom-house is established, the collector of duties, together with the governor, lieutenant-governor, or other person admiuistering the government. (5.) At the ports of Calcutta, Madras, and Bombay, the master attend- ants, and at any other port or place so ai)proved as aforesaid within the limits of the charter and under the government of the East India Com- pany, the collector of duties, or any other person of six years standing in the civil service of the said company who is appointed by any of the governments of the said company to act for this purpose. (6.) At. every other port or place so approved as aforesa.id, within Her Majesty's dominions abroad, the collector, comptroller, or other principal officer of customs, or of navigation laws ; or if there is no such officer resident at such port or place, the governor, lieutenant-governor, or other person administering the government of the possession in which such port or place is situate. 31. The governor, lieutenant-governor, or other person administering the government, in any British possession where any ship is registered under the authority of this act shall, with regard to the pertbrm- [661] ance of any act or thing relating to the *registry of a ship or of any interest therein, be considered in all respects as occupying the place; of the commissioners of customs; and any British consular oflcer shall, in any place where there is no justice of the peace, be au- thorized to take any declaration hereby required or permitted to be made in the presence of a justice of the peace. # •* * * 35. Every application for the registry of a ship shall, in the case of iu: dividuals, be made; by the person requiring to be registered as owner, or by so.me one or mOre of such persons, if more than one, or by his or their duly authorized agent, and in the case of bodies corporate, by their duly authorized agent; the authority of such ag6nt, if appointed by individ- uals, to be testified by some writing under the hands of the appointors, and if appointed by a body corporate, by some instrument under the common seal of such body corporate. 36. Before registry, the ship shall be surveyed by a person duly ap- pointed under this act, and such surveyor shall grant a certificate in the form marked A, in the schedule hereto, specifying her tonnage, build, and such other particulars descriptive of the identity of the ship as may from time to time be required by the board of trade ; and such certifi- cate shall be delivered to the registrar before registry. 168 TEEATY OF WASHrnGTON — PAPERS ACCOMPANYING [662] 37. The following rules shall be observed with *respect to en- tries in the register book; that is to say: (1.) The property in a ship shall be divided into sixty-four shares. (2.) Subject to the provisions with respect to joint owners or owners by transmission hereinafter contained, not more than thirtj'-two individ- uals shall be entitled to be registered at the same time as owners of any one shiD ; but this rule shall not affect the beneficial title of a,ny number of persons, or of any company represented by or claiming under ot through any registered owner or joint owner. (3.) No person shall be entitled to be registered as owner of any frac- tional part of a share in a ship, but any number of persons, not exceed- ing five, may be registered as joint owners of a ship, or of a share or shares therein. (4.) Joint owners shall be considered as constituting one person only as regards the foregoing rule relating to the number of persons entitled to be registered as owners, and shall not be entitled to dispose in sev- eralty of any interest in any ship, or in any share or shares therein, in respect of which they are registered. (5.) A body corporate may be registered as owner by its corporate name. [663J 38. No person shall be entitled to be registered *as owner of a ship, or any share therein, until he has made and subscribed a declaration in the form marked B, in the schedule hereto, referring to the ship as described in the certificate of the surveyor, and containing the following particulars ; that is to say : (1.) A statement of his qualification to be an owner of a share in a British ship. (2.) A statement of the time when and the place where such ship was built, or (if the ship is foreign-built, and the time and place of building not known) a statement that she is foreign-built, and that he does not know the time or place of her building ; and, in addition thereto, in the case of a foreign ship, a statement of her foreign name, or (in the case of a ship condemned) a statement of the time, place, and court at and by which she was condemned. ' (3.) A statement of the name of the master. (4.) A statement of the number of shares in such ship of which he is entitled to be registered as owner. (5.) A denial that, to the best of his knowledge and belief, any un- qualified person or body of persons is entitled as owner to any legal or beneficial interest in such ship, or any share therein. [664] The above declaration of ownership shall be *made and sub- scribed in the presence of the registrar, if the declarant reside within five miles of the custom-house of the port of registry, but if beyond that distance, in the presence of any registrar or of any justice of the peace. ******* 40. Upon the first registry of a ship there shall, in addition to the declaration of ownership, be produced the following evidence ; that is to say: (1.) In the case of a British-built ship, a certificate (which the builder is hereby required to grant, under his hand) containing a true' account of the proper denomination and of the tonnage of such ship as estimated by him, and of the time when and of the place where such ship was built, together with the name of the party (if any) on whose account he has built the same; and, if any sale or sales have taken place, the bill or bills of sale under which the ship, or share therein, has becoms vested in the party requiring to be registered as owner. COUNTER CASE OP THE UNITED STATES. 169 (2.) In the case of a foreign-built ship, the same evidence as iu the case of a British-built ship, unless the person requiring to be registered as owner, or, in the case of a body corporate, the duly appointed ofQcer, declares that the time or place of her building is unknown, or that [665] the builder's certificate cannot be procured, in which *case there shall be required only the bill or bills of sale under which the ship or share therein became vested in the party requiring to be regis- tered as owner thereof. (3.) In the case of a ship condemned by any competent court, an offi- cial copy of the condemnation of such ship. 41. If any builder willfully makes a false statement in any certificate hereby required to be granted by him, he shall, for every such offense, incur .a penalty not exceeding one hundred pounds. 42. As soon as the foregoing requisites to the due registry of a ship have been complied with, the registrar shall enter in the register-book the following particulars relating to such ship ; that is to say : (1.) The name of the ship and of the port to which it belongs. (2.) The details as to her tounage, build, and description comprised in the certificate hereinbefore directed to be given by the surveyor. (3.) The several particulars as to her origin stated in the declaration or declarations of ownership. (4.) The names and descriptions of her registered owner or owners, and if there is more than one such owner, the proportions in which they are interested in such ship. * * * * [666] 44. Upon the completion of the registry of any *ship, the regis- trar shall grant a certificate of registry in the form marked D, in the schedule hereto, comprising the following particulars ; that is to say : (1.) The name of the ship and of the port to which she belongs. (2.) The details as to her tonnage, build, and description comprised in the certificate hereinbefore dtiected to be given by the surveyor. (3.) The name of her master. (4.) The several particulars as to her origin stated in the declaration or declarations of ownership. (5.) The name and descriptions of her registered owner or owners, and if there is more than one such owner, the proportions in which they sire respectively interested indorsed upon such certificate. .; S3. If any registered ship is either actually or constructively lost, taken by the enemy, burnt, or broken up, or if by reason of a transfer to any persons not qualified to be owners of British ships, or of any other matter or thing, any such ship as aforesaid ceases to be a British ship, every person who at the time of the occurrence of any of the aforesaid events owns such ship or any share therein shall, immediately upon obtaining knowledge of any such occurrence, if no notice thereof has already been given to the registrar at the port of registry of such [667] ship, *give such notice to him, and he shall make an entry thereof in his register-book ; and, except in cases where the certificate of registry is lost or destroyed, the master of every ship so circumstanced as aforesaid shall immediately, if such event occurs in port, bnt if the same occurs elsewhere, theu within ten days after his arrival in port, deliver the certificate of registry of such ship to the registrar; or, if there be no registrar, to the British consular officer at such port, and such registrar, if he is not himself the registrar of her port of registry, or such British consular offieer, shall forthwith forward the certificate so delivered to him to the registrar of the port of registry of the ship ; and every owner and master who, without reasonable cause, makes default 170 TREATY OP WASHINGTON PAPEES ACCOMPANYING in obeying tlie provisions of this section, shall for each offense incur a penalty not exceeding one hundred pounds. [668] *CEBTIFIOATES OF MOETGAgB AND SALE. 76. Any registered owner, if desirous of disposing by way of mortgage or sale of the ship or share in respect of which he is registered at any place out of the country or possession in which the port of registry of such ship is situate, may apply to the registrar, who shall thereupon enable him to do so by granting such certificates as are hereinafter mentioned, to be called, respectively, certificates of mortgage or certifi- cates of sale, according as they ijurport to give a power to mortgage or a power to sell. 77. Previously to any certificate of mortgage or sale being granted, the applicant shall state to the registrar, to be by him entered in the register-book, the following particulars; that is to say: (1.) The names of the persons by whom the power mentioned in such certificate is to be exercised, and in the case of a mortgage the maxi- mum amount of charge to be created, if it is intended to fix any such maximum, and in the case of a sale the minimum price at which a sale is to made, if it is intended to fix any such minimum. (2.) The specific place or places where such power is to be exercised, or if no place be specified, then that it may be exercised any- [669] where, *subject to the provisions hereinafter contained. (3.) The limit of time within which such power may be exer- cised. 78. Eo certificate of mortgage or sale shall be granted, so as to author- ize any mortgage or sale to be made ; At any place within the United Kingdom, if the port of registry of the ship be situate in the United Kingdom ; or at any place within the same British possession if the port of registry is situate within a British possession; or, By any person not named in the certificate. 79. Certificates of mortgage and sale shall be in the forms marked respectively M and N, in the schedule hereto, and shall contain a state- ment of the several particulars hereinbefore directed to be entered in the register-book, and in addition thereto an enumeration of any reg- istered mortgages, or certificate of mortgage, or sale affecting the ship or shares in respect of which such certificates are given. 81. The following rules shall be observed as to certificates of sale ; that is to say : (10.) If the ship is sold to a party not qualified to be the owner of a British ship, the bill of sale by which the ship is transferred, the certi- ficate of sale, and the certificate of registry shall be produced to [670] some registrar or consular ofiiicer, * who shall retain the certificates of sale and registry, and, having indorsed thereon the fact of such ship having been sold to persons not qualified to be owners of British ships, shall forward such certificates to theregistrar of the port appear- ing on the certificate of registry to be the port of registry of such ship ; and such last-mentioned registrar shall thereupon, make a memorandum of the sale in his register-book, and the registry of the ship in such book shall be considered as closed, except so far as relates to any unsatisfied mortgages or existing certificates of mortgage entered therein. 11. If, upon a sale being made to an unqualified person, default is made in the production of such certificates as are mentioned in the last rule, such unqualified person shall be considered by British law as hav- CO0NTEE CASE OF THE UNITED STATES. 171 ing acquired no title to or Interest in the ship ; and, further, the party upon whose application such certificate was granted, and the persons exercising the power, shall each incur a penalty not exceediug one hun- dred pounds. 94. Every registrar in the United Kingdom shall, at the expi- [671] ration of every month, and *every other registrar shall without delay, or at such stated times as may be fixed by the commission- ers of custoins, transmit to the custom-house in London a full return, in such form as'tbey may direct, of all registries, transfers, transmissions, mortgages and other dealings with ships which have been registered by or communicated to them iu their character of registrars, and the names of the persons who have been concerned in the same, and such other particulars as may be directed by the said commissioners. NATIONAL CHAEAOTEE. 102. l>ro officer of customs shall grant "a clearance or transire for any ship until the master of such ship has declared to such officer the name of the nation to which he claims that she belongs ; and such officer shall thereupon inscribe such name on the clearance or trausire. And if any ship attempts to proceed to sea without such clearance or trans- ire, any such officer may detain her until such declaration is made. 103. The offenses hereinafter mentioned shall be punishable as fol- lows, that is to say : (1.) If any person uses the British flag and assumes the British national character on board any ship owned in whole or in part by any [672] persons *not entitled by law to own British ships, for the purpose of making such ship appear to be a British ship, such ship shall be forfeited to Her Majesty, unless such assumption has been made for the purpose of escaping capture by an enemy, or by a foreign ship of war in exercise of some belligerent right ; and in any proceeding for enforcing any such forfeiture the burden of proving a title to use the British flag and assume the British national character shall lie upon the person using and assuming the same. (2.) If the master or owner of any British ship does or permits to be done any matter or thing, or carries or permits to be carried any pa- pers or documents with intent to conceal the British character of such ship from any person entitled by British law to inquire into the same, or to assume a foreign character, or with intent to deceive any such person as lastly hereinbefore mentioned, such ship shall be forfeited to Her Majesty ; and the master, if he commits or is privy to the com- mission of the offense, shall be guilty of a misdemeanor. (3.) If any unqualified person, except in the case of such transmitted interest^ as are hereinbefore mentioned, acquires as owner any interest, either legal or beneficial, in a ship using a British flag, and as- [673] suming the British character, such interest *shall be forfeited to Her Majesty. (4.) If any person, on behalf of himself or any other person or body of persons, willfully makes a false declaration touching the qualification of himself or such other person or body of persons to own British ships or any shares therein, the declarant shall be guilty of a misdemeanor ; and the ship or share in respect of which such declaration is made, if the same has not been forfeited under the foregoing provision, shall, to the extent of the interest therein of the pei'son making the declaration, andun- less it is shown he had no authority to make the same of the parties on behalf of whom such declaration is made, be forfeited to Her Ma- jesty. 172 TREATY OP WASHINGTON — PAPERS ACCOMPANYING And in order that the above provisions as to forfeitures may be car- ried into effect, it shall be lawful for any comnnssioned oflacer on full pay in the military or naval service of Her Majesty, or any British of- ficer of customs, or any British consular officer, to seize and detain any ship which has, either wholly or as to any share therein, become subject to forfeiture as aforesaid, and bring her for adjudication before the high court of admiralty in England or Ireland or any court having admiralty jurisdiction in Her Majesty's dominions ; and such court may thereupon make such order in the case as it may think fit, and [674J may award to the olfl*cer bringing in the same for adjudication such portion of the proceeds of the sale of any forfeited ship or share as it may think right. 104. No such oflcer as aforesaid shall be responsible, either civilly or criminally, to any person whomsoever, in respect of the seizure or de- tention of any ship that has been seized or detained by him in pursu- ance of the provisions herein, contained, notwithstanding that such ship is not brought in for adjudication; or, if so brought in, is declared not to be liable to forfeiture, if it is shown to the satisfaction of the judge or court before whom any trial relating to such ship or such seizure or detention is held that there w'ere reasonable grounds for such seizure or detention ; but if no such grounds are shown, such judge or court may award payment of costs and damages to any party aggrieved, and make such other order in the premises as it thinks just. [675] *gHIPPING-OFFICES. No. 122. In every sea-port in the United Kingdom in which there is a local marine board, such board shall establish a shipping-office or shipping-offices, and may, for that purpose, subject as herein mentioned, procure the requisite premises, and appoint, and from time to time remove and re-appoint, superintendents of such offices, to be called ship- ping-masters, with any necessary deputies, clerks, and servants, and regulate the mode of conducting business at such offices, and shall, sub- ject as herein mentioned, have complete control over the same; and every act done by or before any deputy duly appointed shall have the same effect as if done by or before a shipping-master. No. 123. The sanction of the board of trade shall be necessary, so far as regards the number of persons so appointed by any such local marine board, and the amount of their salaries and wages and all other ex- penses; and the board of trade shall have the immediate control of such shipping-offices, so far as regards the receipt and payment of money thereat; and all shipping-masters, deputies, clerks, and [676] servants, so appointed as aforesaid, *shall, before entering upon their duties, give such security (if any) for the due performance thereof as the board of trade requires ; and if in any case the board of trade has reason to believe that any shipping-master, deputy, clerk, or servant appointed by any local marine board does not properly discharge his duties, the board of trade may cause the case to be investigated, and may, if it thinks fit so to do, remove him from his oflce, and may provide for the proper performance of his duties until another person is properly appointed in his place. No. 12-L It shall be the general business of shipping-masters, ap- pointed as aforesaid — '' To afford facilities for engaging seamen by keeping registries of their names and characters ; - '- COUNTER CASE OF THE UNITED STATES. 173 To superintend and facilitate their engagement and discharge in man- ned hereinafter mentioned ; To provide means for securing the presence on board at the proper times of men who are so engaged ; To facilitate the making of apprenticeships to the sea-service ; ""'f perform such other duties relating to merchant seamen and mer- chant ships as are hereby, or may hereafter, under the powers herein contained, be committed to tliem. [677] *]Sro. 149. The master of every ship, except ships of less than eighty tons registered tonnage, exclusively employed in trading hetween different ports on the coasts of the United Kingdom, shall enter iuto an agreement with every seaman whom he carries to sea from any port in the United Kingdom as one of his crew in the manner hereinaf- ter mentioned ; and every such agreement shall be in a form sanctioned by the board of trade, and shall be dated at the time of the first signa- ture thereof, and shall be signed by the master before any seaman signs the same, and shall contain the following particulars as terms thereof ; that is to say : (1.) The nature, and, as far as practicable, the duration of the intended voyage or engagement. (2.) The number and description of the crew, specifying how many are engaged as sailors. (3.) The time at which each seaman is to be on board or to begin work. (4.) The capacity in which each seaman is to serve. (5.) The amount of wages which each seaman is to receive. [678] *(6.) A scale of the provisions which are to be furnished to each seaman. (7.) Any regulations as to conduct on board, and as to flues, short allowance of provisions, or other lawful punishments for misconduct, which have been sanctioned by the board of trade as regulations proper to be adopted, and which the parties agree to adopt. And every such agreement shall be so framed as to admit of stipula- tions, to be adopted at the will of the master and seamen in each case, as to advance and allotment of wages, and may contain any other stipu- lations which are not contrary to law : Provided, That if the master of any ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which such ship belongs or in which her crew were engaged, and engages sin- gle seamen in the United Kingdom, such seamen may sign the agree- ment so made, and it shall not be necessary for them to sign an agreement in the form sanctioned by the board of trade. [679] *So. 150. In the case of all foreign-going ships, in whatever part of Her Majesty's dominions the same are registered, the fol- lowing rules shall be observed with respect to agreements ; that is to say: (I4 Every agreement made in the United Kingdom (except in such cases of agreements with substitutes as are hereinafter specially pro- vided for) shall be signed by each seaman in the presence of a shipping- master. (2.) Such shipping- master shall cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same before he signs it, and shall attest each signature. (3.) When the crew is first engaged the agreement shall be signed in duplicate, and one part shall be retained by the shipping-master and the other part shall contain a special place or form for the descriptions and 174 TEEATY OF WASHINGTON — ^PAPERS ACCOMPANYING signatures of substitutes or persons engaged subsequently to the first departure of the ship, and shall be delivered to the master. [680] *(4.) In the case of substitutes engaged in the place of seamen who have duly signed the agreement, and whose services are lost within twenty-four hours of the ship's putting to sea, by death, deser- tion, or other unforeseen cause, the engagement shall, when practicable, be made before some shipping-master duly appointed in the manner hereinbefore specified ; and whenever such last-mentioned engagement cannot be so made, the master shall, before the ship puts to sea, if prac- ticable, and if not, as soon afterward as possible, cause the agreement to be read over and explained to the seamen ; and the seamen shall there- upon sign the same in the presence of a witness, who shall attest their signatures. 168. All stipulations for the allotment of any part of the wages of a seaman during his absence, which are made at the commencement of the voyage, shall be inserted in the agreement, and shall state the amounts and times of the payments to be made; and all allotment notes shall be in forms sanctioned by the board of trade. [681] *THE CUSTOMS CONSOLliDATION ACT, 1853. ANNO DECIMO SEXTO ET DECIMO SEPTIMO VICTORIA EEGINJE.' , Cap. CVII. — AN ACT to amend and consolidate the laws relatingto the customs of the United Kingdom and the Isle of Man, and certain laws relating to trade and navi- gation and the British possessions. — [August 20, 181)3.] # . # * # « * * XIII. The commissioners of customs may, from time to time, by order under their hands, appoint stations or places for ships arriving at or depart- ing from any port or place to bring to for the boarding or landing of officers of the customs, and may also appoint places to he sufferance- wharves for the lading and unlading of goods by sufferance, in such cases, under such restrictions, and in such manner as they shall [682] see fit, and may *also direct at what particular part or parts of any harbor, dock, quay, or other place in any port, ships laden with tobacco or any particular cargo shall moor and discharge such cargo ; and the commissioners of customi?, or the collector or comptroller of arty port under their directions, may station officers on board any ship while within the limits of any port in the United Kingdom. * # # « # * . . ' # LIT. The captain, master, purser, or other person having the charge of anj'^ ship (having commission from Her Majesty, or from any foreign state) having on board any goods laden in parts beyond the seas, shall, on arrival at any port in the United Kingdom, and before any part of such goods be taken out of such ship, or when called upon so to do by any officer of the customs, deliver an account in writing, under his hand, to the best of his knowledge, of the quality and quantity of every pack age or parcel of such goods, 'and of the marks and numbers thereon, and of the names of the respective shippers and consignees of the same, and shall make and subscribe a declaration at the foot of such account, declaring to the truth therieof, and shall also truly answer to the col- lector or comptroller such questions concerning such goods as shall be required of him, and on failure thereof of such captain, master, [683] purser, or other person, shall forfeit the sum of one hmi*dred COUNTER CASE OF THE UNITED STATES. 175 pounds; and all such ships shall be liable to such searches as mer- chant-ships are liable to, and the officers of the customs may freely enter and go on board all such ships, and bring from thence on. shore ■ into the Queen's warehouse any goods found on board any such ship as 'iatbvesaid, subject, nevertheless, to such regulations in respect of ships of war belonging to Her Majesty as shall, from time to time, be directed in that respect by the commissioners of Her Majesty's treasury. j As to the exportation and entry of goods, and the clearance of ships i> from the United Kingdom to parts beyond the seas : , / * * * * * * # CXVIII. The master of every ship in which any goods are to be ex- ported from the United Kingdom to parts beyond the seas, or his agent, shall, before any goods be taken on board, d(^liver to the collector or comptroller a certiflcate from the proper officer of the due clearance inward or coastwise of such ship of her last voyage, and shall also deliver therewith an entry outward of such ship, verified by his signa- ture, in the following form, or to the same effect, and containing. [684] the several particulars *indicated, or required therebj': * • * And if such ship shall have commenced her lading at some other port, the master shall deliver to the searcher the clearance of such goods from such other port; and if any goods be taken on board any ship at any port before she shall have entered outwards at such port, . (unless a stiffening order, when necessary, shall be issued by the proper officer to lade any heavy goods for exportation on board such ship,) the master shall forfeit the sum of one hundred pounds. * * * # * ,# * CXXVI. The shipping bill or bills, when filled up and signed by the exporter or his agent, or the consignee of the ship, as the case may be, '. in such manner as the proper officer may require, and countersigned by the searcher, shall be the clearance for all the goods enumerated therein; and if any of such goods shall consist of tea, spirits or tobacco, the ex- porter or his agent shall furnish to the searcher an account thereof, containing the number and description of the packages, and the respect- ive quantities contained therein, which, when certified by the searcher, shall accompany the ship, and have the same force and effect as the cocket in use prior to the passing of this act ; and if the exporter or his agent shall require a similar certificate in respect of any other goods shipped for exportation, the searcher shall, on its being pre- [685] *sented to him for that purpose, certify the same in like manner: Provided always, That if any such certificate be required to be in any particular form for goods destined for the Zollvereiu or any other ^ tbreign state, or under the name of "cocket," such certificate may be so prepared and denominatetl. As to the shipping of stores for the use of foreign-bound vessels : GXL. The master of every ship of the burden of fifty tons or upwards, departing from any port in the United Kingdom upon a voyage to parts beyond the seas, the duration of which out and home shall not be less than forty days, shall, upon due application made by him, and upon such terms and conditions as the commissioners of customs may direct, receive from the searcher an order for the shipment of such stores as may be required and allowed by the collector or comptroller for the use of such ship, with reference to the number of the crew and passen- gers on board and the probable duration of the voyage on which she is ■• about to depart; and all demands for such stores shall be made in such 176 TREATY OP WASHINGTON PAPERS ACCOMPANYING form and manner as such collector or comptroller shall require, and- shall be signed by the master or owner of the vessel ; and after, [686] such stores are *duly shipped the master or his agent shall make out an account of the stores so shipped, together with any other stores then already on board, and the same, when presented to the searcher, signed by him, and countersigned by the collector or comp- troller, shall be the victualing bill; and no stores shall be shipped for the use of any ship, nor any articles taken on board any ship be deemed to be stores, except such as shall be borne upon such victualing bill. As to the clearance of ships outwards : OXLI. If there be on board Any ship any goods, being part of the inward cargo reported for exportation in the same ship, the master shall, before clearance outwards of such ship from any port in the United Kingdom, deliver to the searcher a copy of the report inwards of such goods, certified by the collector or comptroller; and if such copy be found to correspond with the goods so remaining on board, the searcher shall sign the same, to be filed with the certificates or cockets, if any, and victualing bill of the ship. CXLIT. Before any ship shall be cleared outwards from the United Kingdom with any goods shipped or intended to be shipped on [687] board the same, the master shall deliver a content of such *ship to the searcher, in the form or to the effect following, and contain- ing the several particulars therein required, as far as the same can be known by him, and shall make and subscribe the declaration at the foot thereof, in the presence of the collector or comptroller, and shall answer such questions as shall be demanded of him concerning the ship, the cargo, and the intended voyage, by such collector or comptroller. ********* And before- clearance, the certificates, if any, shall be delivered to the searcher, who shall compare the shipping bills with the contents and certificates, if any, and file such certificates, copy of report inwards, if any, of goods reported for exportation in such ship, and , the victualing bill, with a label attached and sealed thereto, in the form or to the effect following: [seal.] Number of certificates, {nunibers in figures.) Ship, (name of ship.) Master, (name of master.) Date of clearance. (Signature.) , Searcher. (Signature.) , Collector or Comptroll&i: And such label, when filled up, and signed by the searcher / [688] and the collector or comptroller, shall, *as to the goods comprised therein, be the clearance and authority for the departure of the ship; and the shipper of any British goods and such goods as were pre- viously chargeable with duty at talue laden in such ship shall, under a penalty of twenty pounds, deliver to the broker, agent, or other person clearing such ship, a duplicate of the bill of lading thereof at the time of signing thereof, with an indorsement thereon of the quantity and value of such goods, and such broker, agent, or other person as afore- said, shall, within fourteen days after such final clearance of the ship, sign and deliver to the collector or comptroller of customs a full and accurate list of all such goods, with the quantities and value thereof, from the bills of lading so delivered to him, with such bill or bills of lading annexed thereto,, and on failure thereof, such broker, agent, or other COUNTER CASE OF THE UNITED STATES. 177 person as aforesaid, shall forfeit tbe sum of twenty pounds, and for this purpose the duplicate bill of lading so required shall not be liable to any stamp duty. OXLIII. If any goods liable to duty on importation, or taken from the warehouse to be exported or entitled to drawback on exportation, ' which are enumerated in the contents of any ship, shall not be [689] duly shipped before the departure of such *s"hip, or shall not be duly certified by the proper officer as short-shipped, such goods shall be forfeited ; or if any such goods shall be taken on board such ship, not being enumerated in such content, the master of such ship shall forfeit the sum of five pounds in respect of every package of such goods; and if any goods duly shipped on board such ship shall be landed at any other place than that for which they shall have been cleared, unless otherwise accounted for to the satisfaction of the com- missioners of customs, the master of such ship shall forfeit a sum equal to treble the value of the goods so landed. OXLIV. If any goods shall be shipped, put off, or water-borne . to be shipped, without being duly cleared, or otherwise contrary to the pro- visions of this act, the same shall be liable to forfeiture. OXLV. Before any ship shall departin ballast from the United King- dom for parts beyond the seas, not having any goods on board except stores from the warehouse borne upon the victualing bill of such ship, nor any goods reported inwards for exportation in such ship, the collector or comptroller shall clear such ship in ballast by notifying such clearance and the date thereof on the victualing bill, and deliver the same to the master of such ship as the clearance thereof, and the master of such ship shall answer to the collector or comptroller such questions touch- [690] ing *her departure and destination as shall be demanded of him ; and ships having only passengers with their baggage on board, and ships laden only with chalk or slate, shall be deemed to be in bal- last; and if any such ship, whether laden or in ballast, shall depart^ without being so cleared, if she have any such stores on board, the ' master shall forfeit and pay the sum of one hundred pounds. As to the boarding of ships after clearance outwards: CXLVI. Any officers ©f customs may go on board any ship after clearance outward within the limits of any port in the United Kingdom, or within four leagues of the coast thereof, and may demand the ship's clearance ; and if there be any goods on board in respect of which cer- tificates are required, not contained in such certificates, or any stores not indorsed on the victualing bill, such goods or stores shall be forfeited ; and if any goods contained in such certificates be not on board, the master shall forfeit the sum of twenty pounds for every package or parcel of goods contained in such certificates, and not on board. GXLYII. If any officer of customs shall place any lock, mark, or seal upon any goods taken from the warehouse without payment of [691] duty as stores on board any ship or vessel de*parting from any port in the United Kingdom, and such lock, mark, or seal be will- fully opened, altered, or broken, or if any such stores be secretly con- veyed away, either while such ship or vessel remains at her first port of departure, or at any other port or place in the United Kingdom, or on her passage from one such port or place to another, before the final de- parture of such ship or vessel on her foreign voyage, the master shall forfeit the sum of twentv pounds. OXLVIII. If any ship departing from any port in the United King- dom shall not bring to at such stations as shall be appointed by the com- missioners of customs for the landing of officers from such ships, or for 12 A— II 178 TREATY OP WASHINGTON — ^PAPERS ACCOMPANYING further examination previous to such departure, the master of such ship shall forfeit the sum of twenty pounds. # * * # # * * GLXY. The master of every ship bound from auy British possessions abroad, except the territories subject to the government of the presi- dencies of Bengal, Madras, and Bombay, shall deliver to the proper of- ficer of customs an entry outward under his hand of such ship, and also subscribe and deliver to such officer a content of the cargo of such ship, if any, or state that she is in ballast, as the case may be, and answer such questions concerning the ship, cargo, if any, and voyage, as [693] shall be demand*ed of him in the same manner, as nearly as may be, as is prescribed to be observed on the entry and departure of any ship from the United Kingdom, and thereupon the proper officer shall give to the master a certificate of the clearance of such ship for her intended voyage ; and if the ship shall depart without such clearance, or if the master shall deliver a false content, or shall not truly answer the questions demanded of him, he shall forfeit the sum of fifty pounds. [693.J *THE SUPPLEMENTAL CUSTOMS CONSOLIDATION ACT, 1855. [Extracts.] ANNO DECIMO OCTAVO ET DBCIMO NONO TIOTOEI^ BEGINS. Cap. XCVI. — AN ACT to consolidate certain acts, and otherwise amend the laws of the onstoms, and an act to regnlate the office of the receipt of Her Majesty's ex- chequer at Westminster. — [14th August, 1855.] IX. No goods shall be shipped, put off, or water-borne, to be shipped for exportation from any port or place in the United Kingdom, except on days not being Sundays or holidays, nor from anyplace except some legal quay, wharf, or other place duly appointed for such purpose, nor without the presence or authority of the proper officer of customs, nor before due entry outwards of such ship and due entry of such goods, lior before such goods shall have been duly cleared for shipment ; and any goods shipped, put off, or water-borne, to be shipped contrary [694] [hereto, shall be forfeited ; and it shall be lawful *for the searcher to open or cause to be opened, and to examine all goods shipped or brought for shipment at any place in the United Kingdom, and the opening for that purpose of packages containing goods upon which any drawback of customs or inland revenue is claimed, and the weighing, repacking, landing, (when water-borne,) and the shipping thereof, shall be done by or at the expense of the exporter. X. Any exporter of goods who shall fail, either by himself or his agent, to deliver to the searcher a shipping bill, with duplicates thereof, of the goods exported by him, as prescribed by. the one hundred audi twenty-fifth section of " the customs consolidation act, 1853 " shall for- feit the sum of twenty pounds. XI. If any ship having cargo on board shall depart from anv port without being duly cleared, the master shall forfeit the sum of one hundred pounds. * * * * « * XVI. The powers and authorities now vested in the commission- ers of customs with regard to any act or thing relating to the customs COUiSrTEE CASE OF THE UNITED STATES. 179 or to trafle or navigation m any of the British possessions abroad shall, from and after the passing of this act, be vested in the governor, [695] lieutenant-governor, or other person *administering the govern- ment in any such possession, and every act required by any law to be done by or with any particular officer or at any particular place, if done by or with any such ofScer or at any place appointed or nominated by such governor, lieutenant-governor, or other person so administering such government, shall be deemed to have been done by or with such ■particular officer or at such particular place, as the case may be, and as required by law ; and all commissions, deputations, and appointments granted to any officers of customs, in force at the commencement of this act, shall have the same force and effect, to all intents and purposes, as if tiae same had been granted or made in the first instance by such gov- ernor, lieutenant-governor, or person so administering the government of any such possession ; and all bonds or other securities which shall have been given by or for any such officers and their respective securi- ties, for good conduct or otherwise, shall remain in force, and shall and may be enforced and put in suit at the instance of or by directions of any such governor, lieutenant-governor, or person administering the government of anv such ijossession. * * * [696] [697] *ADDIT10NAL EVIDENCE FEOM MELBODKNE AND UAPE TOWN, SUBMITTED TO THE ARBITEATOES ON THE 15TH OF DECEMBER, 1871, BUT NOT INCLUDED IN THE EVIDENCE THEN PRINTED. [698] * Mr.-Adamson, consul, to Mr. Davis, Assistant Secretary of State. Consulate of the United States op America, Melbourne, Septemler 25, 1871. SiE : I have the honor to acknowledge the receipt, on the 13th in- stant, of dispatch No. 14, dated June 29, 1871, from the Hon. William Hunter, Acting Secretary of State, and of the inclosures and documents therein referred to.- 1 am instructed to procure such further evidence as it may be possi- ble to obtain in regard to various facts in connection with the visit, at this port, of the armed steamship Sea King, otherwise known as the confederate steamship Shenandoah, in order more fully to establish the claims of the United States before the tribunal which is to sit at Geneva. In explanation of the want of fullness in the documents about to be pre- sented to you herewith, I may be permitted to say, that the' time be- tween the receipt of the honorable Acting Secretary's dispatch and the departure of mail, now about to close, was too short for the neces- [699] sary investigations in a matter of such impor*tance; that, having but recently arrived here, I was compelled to depend mainly on the assistance of Mr. S. P. Lord, a loyal citizen of the United States, long a resident of this port, to whose zealous co-operation I am indebted for the evidence herewith. Also, that beside the many.deaths which have occurred, a large number of those who could give valuable evidence have long since left this port, and that most of those still here decline giving the desired information, ei.ther because it might be prejudicial to their private business, or to the interests of Great Britain, the country 180 TREATY OF WASHINGTON PAPERS ACCOMPANYING to which they owe allegiance. I may also state that without a coaiinis- sion from the coui'ts of Great Britain, directing the taking of depositions, it seems diflacult to take declarations here that woald be evidence in the courts of England. With the above explanations I now submit the inclosed deposition of George Washington Eobbins, of Sandridge, near Melbourne, (inclosure No. 1,) declaring that he saw the Shenandoah at this port in 1865, and identifying that vessel as the Sea King by the name on the stern as well as by the statements made to him by two of her officers, his acquaint- ances. [700] Mr. Eobbins also saw the Shenandoah *on the government slip at Wilhamstown ; saw working-men going to and from her, and positively declares that additions were made to her crew, naming two of the men. You will particularly notice that he reported the shipping of the men to the water-police, who said they were powerless to inter- fere without directions from the head authorities at Melbourne, thus confirming the statement of Mr. Consul Blan chard in his dispatch iJfo. 4, of February 23, 1865. Also, as sh6wing the partnership of the gov- ernment of this colony, the sworn statement of Samuel P. Lord, esq., of this city, (inclosure IsTo. 2,) repeating under oath the statement contained in his letter to Mr. Consul Blauchard, which appears as inclosure JTo. 49, with Mr. Blanchard's dispatch of February 23, 1805, giving strong evidence of the unwillingness of the Crown solicitor and other officials to receive information which might make it the duty of the government to seize the Shenandoah, and generally the unfriendly feeling of the ■ government of this colony as towards the United States. You will also please notice that Mr. Lord identifies as an official [701 1 book or document the printed book entitled " The Victorian ♦Han- sard," which was produced at the taking of his deposition, and which will be forwarded nere with under separate cover, marked 3 A. I" I also inclose the sworn statement of Samuel P. Lord, esq., (inclosm-e No. 4,) showing the fact that said vessel was coaled and repaired at this port, which more fully explains why the declarations of the persons who actually furnished the coals and made the repairs cannot be given herewith. Also the sworn statement of H. B. Donaldson, declaring to the facts of the arrival of the Shenandoah at this port, the stay here of said ship, the repairs made at the government slip, and particularly to the fact that he furnished the materials for such repairs, (inclosure No. 5.) In regard to the confidential instructions alluded to on page 517, Diplo- matic Correspondence, it would seem that they have not been made public. It may be important to our case to notice particularly the debates in the legislative councils of this colony during the stay of the Shenan- doah, as reported in the Victorian Hansard herewith, (see pages [702] 264, 284, 309, and 364.) On page 264 it will be seen *that the Hon. Mr. Berry (now the treasurer of this colony) called the at- tention of the government to the case of the Shenandoah. He identi- fied her as the vessel called the Sea King, which sailed from Londoa about the 8th of October, 1864, asserting that there was abundant evi- , dence of the fact, and inquired why the confiscation of the vessel was not carried out under the neutrality i)roclamation. He pointed out to the honorable chief secretary that the vessels destroyed by such a ves- sel would at some future time be claimed by the American Government from the British government, but unfortunately his prophetic ,utter- ances were not heeded. COUNTER CASE OP THE UNITED STATES. 181 The partnership of this government may well be inferred from the reply of the chief secretary, Mr. McCulloch, (now Sir James McOuUoch,) which follows Mr. Berry's remarks. The same partnership is also clearly shown in the '■' cheers from all parts of the liouse-^ which followed the subsequent remarks of Mr. O'Shannessy. It is also shown in the extremely tardy action of the government in regard to complaints made that the [703] Shenandoah * was increasing her crew in this port. The honorable chief secretary, Mr. McCulloch, in his explanations made in the house, February 15, 1865, (see Hansard, page 364,) says, " The govern- ment found they could not shirk the question." It was apparently their fcsire to do so, and his history of the case seems to show that eventu- ally they did shirk it. , I much regret the impossibility of obtaining direct testimony on many important points. The second deposition of Samuel P. Lord, esq., states clearly the fact that Mr. H. W. Langlands, who is substantially .the Langlands Foundery Company of this place, admitted to Mr. Lord that he made the repairs on the Shenandoah at this port, and that he paid one J. E. Collins the sum of three hundred pounds sterling for steve- dore work on said vessel. Mr. Collins did at first agree to depose to his share in the transaction, but on second thought declined. (See his letter attached to inclosure No. 2.) That the Shenandoah was repaired on what is known as the govern- ment slip is not denied by the then chief secretary, (see remarks of Mr. McCulloch, Victorian Hansard, page 364,) but I believe that [704] at that *tim6 the government slip was leased to a private com- pany. For reasons hereinbefore stated, I cannot obtain sworn declaration as to the coaling, although the facts are a matter of general notoriety. The recruiting of additional crew, at this port, may be considered as admitted by the chief secretary, (see Victorian Hansard, pages 364, 365,) and the fact that Captain Waddell knew that men were joining his ship here is indicated by his refusal to allow the inspector of police to go on board and execute the warrant for apprehension of the man '' Charlie," and that Captain Waddell gave his word of honor as an ofii- cer and a gentleman that there was no such person on board, although later on it will be seen that four men were detected in leaving the ship at about 10 o'clock at night, and that one of them was the aforesaid man " Charlie.' The fact that Captain Waddell had violated his word of honor, as an officer and a gentleman, was virtually acknowledged by the chief secre- tarj', in suspending for a time permission for Her Majesty's sub- [70oJ jects to *give assistance to the Shenandoah, which suspension was however removed, for what appears to be rather insufBcient rea- sons; (see Hansard, page 365,) also, by the fact, a matter of common repute, that the leading club, the "Melbourne Club," which had given a public dinner to the ofi&cers of the Shenandoah, did not invite them so freely and openly after this breach of " word of honor." As further showing the partnership of the government officials, I may say that it is a matter of common report, which, however, cannot be established by direct evidence, that when a public reception was ten- dered the officers of the Shenandoah by citizens of Ballarat, distant 9C 182 TEEATY OF WASHINGTON — PAPERS ACCOMPANYINa miles, the government of this colony, in the person of one of its members, furnished said oflScers with free passes over the railway. Eespectfully submitting the foregoing, I have the honor to be, sir, yours, &c., THOMAS ADAMSON, JR., United States Consul. Hon. J. C. B. DAVIS, Assistant Secretary of State, Washington. P. S.— At the time of writing the above, the deposition of H. B. Don- aldson, marked enclosure No. 5, was in the solicitor's hands, ready [706] for Mr, Donaldson to swear to and *subscribe. I have made every effort to have it completed, and iiow, atl p. m., my solicitor comes with the document unsigned, stating that Donaldson refuses to sign until he receives £50 for doing so. I will barely have time to mail this; in fact-mav have to send it to Sydney to be mailed. THOMAS ADAMSON, Je., United States Consul. Affidavit of G. W. Rohhins. To all to whom these presents shall come : I, Henry Penketh Fergle, notary public by royal authority, duly authorized, admitted, and sworn, residing and practicing in the city of Melbourne, in the colony of Victoria, do hereby certify that Winfleld Attenborough, before whom the affidavit^ of George Washington Eobbins, on the other side written, purports to have been sworn, is a commissioner of the supreme court of the said colony for taking affidavits duly appointed in that behalf; and that the name W. Attenborough subscribed thereto is of the proper handwriting of the said Winlield Attenborough ; and that to all acts by him, the said Winfield Attenborough, done in his said capacity or office, [707] *full faith and credit are due, in judicature and thereout. In faith and testimony whereof, I, the said notary, have here- unto subscribed my name and set and affixed my seal of ofBce, at Mel- bourne, in the said colony of Victoria, this twenty-fifth day of Septem- ber, in the year of our Loi'd one thousand eight hundred and seventy- one. [SEAL.] HES^KY PENKETH EEEGIE, Notary Public, Melbourne. I, George Washington Eobbins, of Sandridge, near Melbourne, in the colony of Victoria, stevedore, make oatli aiid say as follows : 1. I have been in business in Sandridge (port of Melbourne) as a stevedore ever since June, one thousand eight hundred and fifty-three. 2. I saw the vessel Shenandoah in the port of Melbourne in one thousand eight hundred and sixty-five. The name Shenandoah I per- ceived had been painted over the name Sea King ; the paint having worn off, the original name was plainly disclosed. The vessel was pop- ularly known in this port as the confederate ship of war Shenan- doah. [708] *3. I knew the paymaster of the Shenandoah and one of the engineers; I first became acquainted with them in New Orleans, in the United States of America. They told me the Shenandoah was originally the Sea King. They asked me to take in the coals for the COUNTER CASE OF THE UNITED STATES. 183 ship, but I refused, on the ground, as I told them, that there was one American flag flying wheu I left the country, and I didn't recognize any other flag. [709] *4. 1 saw the Shenandoah on the government slip at Williams- town, near Melbourne ; 1 saw working-men going backwards and forwards whilst she was on the government slip. 5. I saw coals being put on board the ship when she was Ijing at anchor in the bay. e. 1 know that several men, residents of this port, went on board the Shenandoah, in this port,.as additions to her crew, and went away in her. Thomas Strong and Henry Eiley were the names of two of the men who so went away. Thomas Strong left my employ for the pur- ipose of so going away. Thomas Strong returned to Melbourne after- wards and applied to me for work, which I refused, on the ground that he had gone away in the Shenandoah against my desire. 7. I reported to the water police at Williamstown the shipping of the ■men, but they said they were powerless to interfere without directions from the head authorities in Melbourne. 8. It was well known in the port that the so-called Shenandoah was being coaled, repaired, aud her crew strengthened here, and without objection on the part of the government. G. W. EOBBINS. Sworn at Melbourne, in the colony of Victoria, this twenty-first day of September, 1871. (710] * Before ine, W. ATTB^TBOROUGFT, A Commissioner for talcing affidavits in the Supreme Court of the Colony of Victoria. Affi,davit of S. P. Lord. I, Samuel Perkins Lord, of Collins Street west, in the city of Mel bourne, in the colony of Victoria, merchant, make oath and say as fol lows, that is to say : 1. In compliance with a request froni Mr. William Blanchard, then consul in the said colony for the United States of America, made to me by him on the twentieth day of February, one thousand eight hundred and sixty-five, that I would give him in writing an account of my inter- view held in Mr. Blanchard's presence with Mr. Gurner, who then, as now, occupied the position of Crown solicitor in the said colony, I wrote and sent to Mr. Blanchard, on the said twentieth day of February, one thousand eight hundred aud sixty-five, a letter of which the follo'sv- ing is a copy : Melbouknb, February 20, 1865. Ueau Sir : Yours of this date, is received requesting me to give you an account ot au interview held in my presence hetween you aud Mr. Gumer, Crown solicitor t711] on Friday last. In reply, you must *allow me to state the whole occurrences of the afternoon in connection with the aifair of shipping men for the Shenan- doah, which were simply these : While in your office about 5 o'clock p. m., a man A feet 1* X ir do, 200, 30s.- £2. 10s. ; -^, A feet 3x3 deal, 140 feet,16s.— 22s. 6rf 3 12 6 Feb. 4. To 12 sheets sand-paper, 2s. 6d.; -tVi A; f f'^^'" i> 11 X U blaekwood V 295 feet 4 inches, 4 18 4 To 8^ feet 9 X l-j-Lr blackwood S To iHr, i i feet 11 X l.!r; \S IS feet 3x2 deal, 150 feet 11 inches, 16s.6rf 1 7 10 To 1%, -i\ feet 11 by i-inch do., 200 feet,2(;s., £2 12s.; Jfeet 3x3, 32 feet 2 inches, 5s. 4(Z 2 17 4 To -/r feet 7 x 1^^, 21 feet 3 inches, 5s. '3d. ; 5 2-inch clasp-nails, 2s.6fZ 7 9 To 1 gross 1-i^-inoh iron screws, 10s. 16d. ; 2 gross IvJ-inch clasp- nails. Is. 6d; ; 4.3-inch enbruk, 2s 14 To four pairs 2-inch brass butts, 3s. Gd. — 14s. ; 4 dozen J-inch brass screws, 7-^(Z.^2s. 6(Z. ; 4 brass buttons, Is ■ 17 6 [724] 'To 4 brass screws, 6d. ; 4 small brass knobs, 2s. ; 7 pounds 27inch cut nails, 3s. 6(? 6 -.0 To 7 pairs 2-inch brass butts, 4s. — £1 Ss.; 5 dozen f-inch iron screws, 2s. 6(J 1 10 6 7 brass buttons, Is. 9d.; 7 brass screws, 6d.; 3 dozen -J-inch iron screws, Is. — 3s 5 3 To 4 dozen -J-inch brass screws, Is. — 4s. ; 7 dozen f-inch iron screws, 15s. lOfZ 9 10 To 2 dozen iron drawer-knobs, 8s.— 16s. ; 1 dozen mahogany knobs, 6s .'. 12 To 2 Only drawer-locks, 3s. Gd. — 6s.; 3 Only drawer-looks, 7s 13 ,0 To 1 set clocks, £9 6s , .'. 9 6 SAIL-M.\KERS' DErAKTMENT. To 110 fathoms 5-iuch B rope, £8 15s. ; 1 setting-fid, 3x7 inches at bottom, £3. 10s. (220, Is.) 12 5 To marline prickers~, 3s. — 4s.; 50 seaming-needles, 8s. 4(? 12 4 To 6 sail hooks, 6s. ; iron-wire shapeliue, 16s'. 12 To 60 yards white duck, Is. 9d. — £52 10s. ; 32 gallons molasses, 4s. 16d.; 6 casks, (3s.) 3s. 10(i 57 16 To 50 gallons lime-juice, 5s.— £12 10s.; 100 gallons rum, 4s. 9d. — £23 15s ,.:.... 36 5 [725] "To 40 fruits, £1 5s. ; 2 kegs pickles, 36 gallons, £9. 10 5 To 2 cases white lead putty, £2 16s 5 12 To 2 boatswain's calls, silver, 18s ] 16 To 8 globe lamps, assorted sizes, £7 4s.; 2 lead putty, £5 12s 12 16 To 4 pieces i lamp-tape, 12s 12 To 3i c. lead putty, £9 16s , ,.. 9 16 To 1 0. lead putty, £2 16s.; 280 colfee, 51 17 19 4 To43gallohs Jamaica rum, £10 4s. 3fZ.; 20 jars table-salt, 15s 10 19 3 To 6 dozen pepper, £4 16s.; 6 dozen mustard, £3 7s 7 17 To 1,500 preserved meats, £68 15s.; 600 soup and bouilli, £27 10s. 96 5 To 4 c. preserved potatoes, £10J ; 2 dozen blacking-brushes, 30; 3 extra and bond 14 o 4 To towels, 4, 15 * 5 17 To labor paid, £121 .."."..121 Toldoz'eubrassbuttons, 9s. 6d.; Sdozendo.kuobs, 36s., 220, lis, 0(i. 2 5 6 To 3 gallons bo. oil, 18s.; 1 c. white lead, 48s... 3 6 To 7 pateut driers, 10s. fid.; i% feet 11 x J red deal. Is. lid . .'. " 2 4 6 COUNTEE CASE OP THE UNITED STATES. 189 1865. Feb. 4. To li feet 21 X 1 cedar, 14s.; 19 feet 13 by i do., 58 19 To i, h i, -I, feet 3x3 cedar, f feet 3x2 cedar, 24 feet, 8d 16 Feb. 3. To 1 turnery, 2s. 6d.; 4 lbs. i iuch nails 4 lbs. 2-inch nails, 4s 6 G To 1 quart bo. oil 2 9 Feb. 4. To ff feet 6 X li T X G boards, 525 feet, 30s 7 17 6 . .To 104 feet shelving, 34s. 8cZ; i\ feet 16 xi inch iDiue, lis. lOd... 2 6 6 To54feet inch pine, 18s.; 1=2, i^s feetQx 3 red pine, 23s. 4cZ 2 14 To 1^5 feet 3x3 inch pine, 16s.; 2 pairs 2 inch brass butts 8s. id... 1 4 [726] *Feb. 6. To 6J-inch nails, 6.3-ihch do., 10 ; 24- do., 10 pounds 2-inoh, I 6326 16 To 6f do., 4s. ; 8J pieces 3-iuch brass butts, 203 2 4 3 To 5 dozen i I screws, Os. 8d. ; 5 dozen IJ brass do., £76 is. 6d 12 6 To 2 dozen 2J brass do., £5 2s. 6d.; 3 brass cabin-locks, 30s 1 15 To 24 nails, assorted, 12s. ; 646 feet shelving, 30s. 9s. 13s 10 15 10 To 535 feeb lumber, 6 £7 9s. 9d. ; 212 feet ^-iuoh c. pine, 30, 3, 2, 6, 30... :.... 8 17 8 To #^, I, tt feet 6 s li T X G boards, 592 feet, 30s 8 17 8 W.4ED-ROOM— MESS ORDER. Feb. 7. To 24 dozen Alsop's ale, 12s. 12(?. ; 8 dozen pp. Tenuent's do., 2s. 14d : 15 6 To 3 dozen sherry, 6s. 15d. ; 4 dozen Johnston's claret, £6 Os. 6d. 10, 6 12 15 To 1 bag copper. 140, £7 lis. 8d. ; 1 barrel crushed loaf-sugar. £6J, 200 pounds .' 13 To 1 dozen haips, £10 14s., 140; 1 box macaroni, 9s. dd 11 To 1 dozen large bo. cnrrie, 36s. ; 1 tin lard, 18, 2, 5^^ 3 To 1 case sardines, 200.90, £7 10s. ; 1 dozen baking-powder, 14s . 8 To olives, 24s. ; 100 hams, £5 Os. ; 1 ca-slc Pilchard's, 45s 8 . To 1-J- dozen cups and saucers, 18s. ; 1^ dozen souji plates, 18s ... . 1 To l| dozen dinner do., 18s. ; 1 J dozen breakfast do., 13s. 6d 1 To 1 dozen mold tumblers, 12s. 9d. ; 1 block-tin soup-tureen, 10s. ed 1 To 120 boxes beef and soujp and bouilli, lis 5 To 4 vegetable dishes, 24s. ; 1 tin tray-waiter, 9s. 6d 1 To 2 large; wash-basins, Gs.ylld. ; 4 dozen Allsop's ale, £2 Gd 2 To 1 case 2 No. 2 Moselle, £2 17s. 6d.; 1 dozen brandy, best, £2 19s.4d : 6 16 SUNDRIES. Eutre bonds. To 4 cases Geneva, £40 ; 1 log-book, 7 s. Wd 4 7 6 To 2 cases Geneva, £40 ; 20s .- 2 To 4 cases Geneva, £40; 20s -4 ' 10 7 6 [727] »1865. Jeb. 7. To 6 cask lime, 54s; 12 w. w. brushes, 60s 5 14 9 5 To 1 fire-engine and hose - 45 Feb. 13. To 18 Galen thimbles, 2f in score for 7-inch rope, 4s 3 12 To 1 fine brass padlock, 4s. 10(?.; 1 oil-feeder, 4s. 6d.. 9 4 5 16 To 6 beeswax, 21 ; 6 letherage, 9s. ; 6 galls, turp., 45. 17d 6 3 6 16 15 To 3 lamp black, 9 ; 6 blk. lead, 6d. ; 6 red do, 4 black 6d 19 To 2 dpz. brs. screws, Is. 6rf. ; hooks, 12s. ; 2 doz. sheets emery 18 To one saw for cutting metal 10 6 To 4 bull's eye lanthern,s, £2 2s 2 2 To 2 11-inch I br. match-blocks, 55s 5 10 To 1 shoe-block - 1 10 ENGINEER. To 4 kegs soft soap, 256s. 10(2 , 10 13 4' CAPTAIN. To 1 doz. mongers-all, lis. Gd; 1 long oil-skin coat, 30s. 16 To 1 oil-skin hat, 4s. ; 1 pr. I. E. boots, 35s 1 19 ' ^ 4 6 11 10 3 7 4 2 4 9 16 14 6 5 6 10 13 6 17 190 TEEATY OF WASHINGTON PAPERS ACCOMPANYING SHIP CONT. 1865 £ s. d^ Feb 9 To 500 sap. shelving, 7s. lOd. ; 463 F. T. & G. timber, £6 188. lOd. 14 8 Ifr 30. To 160 ft. 6 X H in. Scotch flooring, 4cZ 2 13 4 To 24 fb. 9 X 1 red deal, 8s. ; 200 Hi X IJ batten pine ... 1 8 O' 10 10 . • To 26 in. dead-locks, 12s; j iron chest handles, 18s 1 10 To 1 doz. 3 X 4 in bo. cabin door hooks ••• 19 To 6 lb. 2'i- in. nails, 3s. ; 3 prs. 2 in. brs. butts, 9s 13 . To 3 doz. 3i in. brs. screws, 4s. 6cZ.; A ifo 3 X 2 deal, 9s 13 6. 16 15 12 [728] "1865. Feb. 9. To 12 dozen f-inoh iron screws, 12s.; 7 dozen J-inoh brass do., 14s.... - 16 Feb. 10. To 18 nails, assorted 9 0' To 1 wool brad, 3s. M.; 12 sheets sand-paper, 2s. 6d 6 2i To 1 gross li I screws, 9s.; 120 feet cedar, 10s 3 19 O' Xo Jf, -l-feet lUx3 Huron pine, 14s.; ]i, feet 3x2-inch, 8x6 12 6 24 17 To 3 hours' turning, 6s.: ft feet 3x2 deal, 6s. 6d 12 6 50 feet, 13 . Feb. 13. To 2 li wrought nails, 6s.; 6 14 nails, 3 9 3 1 To A 13x2 deal, 75 15 11 3 To 6 brass 7-inch locks,- 21s.; 6 do. do., 12s.; 2 do. do., 5s 1 18 0- 26 • To 2 dozen mahogany knobs, 5s. 6d.; 4 pairs 2i-inch brass butts, 12s ---- 17 6- To 4 dozen iron screws, 6s.; 3 brass cap-locks, 10s. 6(2 16 6. 3 6 To 1 dozen small- brass screws. Is. 6d -.-- ' 1 & CARPENTERS' STORES. ' Feb. 16. To 6 sheets pure copper, 2s. 9(Z.; 12 pounds wrought nails, 36s. 1. 4 5 0- 28 19 3 To 20 5-inch spikes, 6s. 8d.; 6 dozen I screws, assorted, 6s 12 8 4 To 400 feet 11x3 pine, £18 6s. 8cZ 18 6 9 1,100 feet, 4. To 100 feet 3x3 soft scantling 15 0' To 484 feet H-inch pine boards 3 6 1 0' To3001..' ; 3 15 0. Feb. 15. To 1 wash-basin, 5s.; 1 wash-jng, 5s — 10 To 1 wash-basin, 5s.; 1 wash-j ug, 5s.: scales 10 10 0- [729 J *To ^, i, i, and f-inoh Huron pine, 120 feet To i, i feet, 2ix2i-inch do. do., 10,130 feet, 7s 3 15 10- To turning.... 3 0' To 7 pounds nails, assorted, 3s. 6d.; 2 bells and springs, 7s.6d 11 6 39 To 2 cages, 3s,; 2 purchase-cranks, 4s.; 4 pillars 13 0' 1 2 ■ 16 To 4 headers, 2s.; 2 pulls of wire check-spring, 2s 10 .0 3 To 6 large plates glass, ;T 9 2 14 To 6 pounds If-inch nails, 4s.; .| copper wire, 2s 6 To 2 dozen cup-hooks, 18s ; 1 pound wrought brads, 3s 110 9 To 4 pounds nails, 28.; 2 dozen 2-inch screws, 3s 5 ft 6 16 To 1 dozen 2-inch brass-screws 3 0' 10 1 IP Feb. 5. Carpenters' account „ 134 19 'W "940 7~^ COUNTER CASE OF THE UNITED STATES. 191 [730] *Mr Edgecombe, consul, to Mr. Fiih, Secretary of State. Consulate op the United States of America, Cape Toion, Noveiriber 4, 1871. Sir : In accordance with instructions received from the Department of State, dated August 4, 1871, No. 102, I have the honor to report that I have made a thorough investigation of the transactions of the Alabama at this and other ports of the colony during the years 1863, 1864. I find it very difficult to obtain any reliable information on the sub- ject, for those that furnished her -with aid and comfort during that pe- riod are not willing to acknowledge it ; such as I have been able to ob- tain, I transmit herewith for the information of the United States Gov- ^ernment. 1, That I have examined the records of this ofSice thoroughly, and find no remonstrance from Mr. Graham to Governor Wodehouse, after August 4, 1863, a copy of which is attached to this dispatch. 2. The amount of coal received on board the Alabama in March, 1864, at this port, was 208 J tons, as per deposition JSTo. 5; no re- pairs were made at this time ; the coal was shipped on board by Will- iam Anderson & Co., who acted as her agent at this port and Simon's Bay. 3. She did not ship any crew at this time, but during her stay [731] in Simon's Bay, in September, 1863, she *shipped eleven men ; the party who shipped them has gone to the diamond-fields. 4. The crew of the Tuscaloosa were paid oft' at Simon's JCown, by Messrs. W. Anderson «& Co., as per affidavit Ko. 2 ; the officers went from here to Southampton, in the mail-steamer, of which Messrs. W. Ander- son & Co. are the agents. 5. The Florida did not visit this colony. Finding it difficult to ob- tain information from outside parties, I applied to the governor, and received an answer from him regretting his inability to furnish me any, as the vessels in question were viewed as men-of-war, and treated as such. I then sent a man to the custom-house, and they refused to allow him to examine the records. I addressed the governor again, asking permission to copy the manifest of steamer Kadie, of September 17,. 1863. On receiving permission, I had copies taken here and at Simon's Town, as per depositions three and four. The supplies received by the Alabama in 1863 were shipped from this port to Simon's Bay, as per man- ifest of steamer Kadie, the repairs as per deposition No. 1. I have the honor, sir, to be your obedient servant, [SEAL.] W. W. EDGECOMB, United States Consul. Number of inclosures, 10 ; 6 depositions ; 4 letters. [732J m. 1. On the arrival of the Alabama at this port in August, 1863, 1 heard' that the vessel required calking, and I went on board to see Captain Semmes. 1 arranged with him to do the work required within a period of five days. I calked her topsides and decks, and when the work was. 192 TREATY OF WASHINGTON PAPEES ACCOMPANYING completed, I was paid the sum of forty pounds and fourteen sliillings by the paymaster on board the vessel. ' ^ -^ A. N. BLUEK, Budge & Blurlc, SMpwrigMs. • Sworn before me at Simon's Town this 7th day of October, 1871. P. H. MAETIN, Justice of the Peace for the District of Simori's Town. Colonial Office, October 31, 1871. Sir : In reply to your letter of the 21st instant, I have the honor to, inform you that in accordance with the request made therein, the gov- ernor has authorized the honorable the collector of customs to allow any person sent by you fpv the purpose to examine and to make a copy of the manifest of the steamer Kadie, both at this port and at Simon's Bay. I have the honor to be, sir, yours, &c., CHAELES MILLS, (Signed for the) Colonial Secretary. [733] *W. W. Edgecomb, Esq., Consul for the United States of America, Gape Town. A true' copy from the original , exhibited tome this day by W. W. Edgecomb, Esq., United States consul, Cape Town. Cape Town, I^Tovember 2, 1871. [SEAL.] Ct. J. DE KOSTE, Notary Public. No. 2. In the matter of the confederate steamer Alabama. Gordon Eennick, of Simons Town, maketh oath and saith, that this deponent was a resident in Simons Town, in the colony of the Cape of Good Hope, in the year 1803. That whilst this deponent was living there, to wit, on the 8th day of August, 1863, a bark or vessel called the Tus- caloosa, under Confederate- American colors, was brought into the port of Simons Bay, by the then Confederate- American steamer Alabama, commanded by Captain Semmes. That said bark or vessel remained in said port a considerable time. That whilst there the men of said bark or vessel Tuscaloosa were paid off and received their wages through the firm of William Anderson & Company, who carry on business as [734] merchants at the aforesaid *port of Simons Town. GOEDON EENNICK. Sworn at Cape Town, Cape of Good Hope, this 20th day of October, 1871, before me. EEBS EISCHEE, Justice of the Peace of Ga^e Town. COUNTER CASE OF THE UNITED STATES. 193 No. 3. POET OP CAPE TOAVN. Ko. 23. Content in the steamship Kadie, J. Fowler, master, for Simons Bay 158 tons, uo guns, 18 men. Passengers or troops.— British built, of Cape Town. Marks and number of packages. Shippers. Quantity and de- scription of goods. Consignees. R. B. W. Anderson &Co. 180 ton coal. 7 barrels pork. 5 hhds. rum. "W. & H. Anderson &Co. I, James Fowler, master of the vessel above named, do declare that the content above written, now tendered and subscribed by me, is a just and true account of all the goods laden on board my ship for this present voyage, and of the names of the respective shippers^ and consignees of the said goods, and of the marks and numbers of the'packages contain- ing the same. (735] *Signed and declared before me, at the custom-house, at the port of Cape Town, the 18th day of September, 1863. . JAMES FOWLBE. Master. One general sufferance. North Wharf, September 18, 1863. A. BAYNES, "S." RECAPITULATION. Cargo, as within. Content, including : British Possessions : 5 hhds. rum, 28 galls., ex-Angelo, Mauritius. Warehoused, 3d October, 1862. C. WELCH. Foreign : 7 barrels pork, 12 cwt. 2 qrs. lbs., ex-Granton, London. Warehoused, 7th February, 1863. C. WELCH. Searcher's OfQce, 18th September, 1863. Cleared. J. H. MACAULLET, "/S'." Raphael Daniel Norden, of Cape Town, Cape of Good Hope, clerk, maketh oath and saith, that the above paper, writing, or document, is a true transcript or copy made by this deponent from a certain custom- house entry with a declaration thereon made and subscribed by James Fowler, master of the screw-steamer Kadie, together with the ,[736] recapitulation on the back thereof, *signed by the respective ofBL- cers of customs, which entry, declaration, and recapitulation are duly filed of record in the custom-house at the aforesaid port of Cape Town. E. D. NOEDEK Sworn at Cape Town, Cape of Good Hope, on this the third day of November, 1871, before me. E. LESUEE, Justice of the Peace for Gape Town. 13 A— II 194 , TREATY OF WASHINGTON ^PAPERS ACCOMPANYING No. 4." I hereby declare that I have this day examined personally the report at the custom-house of the arrival in this port on the 19th September, .1863, of the coasting steamer Kadie (in the year 1863.) It states as fol- lows : , From Cape Town to this port and back to Cape Town, having on board to he shipped to the Alabama : 180 tons coal, 7 barrels pork, 12 cwt. 2 qrs. lbs., 5 barrels rum, 287 gallons, 3 bales merchandise. Siened by collector of customs. 6. W. BROWNING. Signed and certified as a true report by the master of Kadie. JAMES rOWLEE. [737] *J. W. WHITE. Simons Town, Oape of Good Hope, sworn before me this 2d Novem- ber, 1871. P. W. MAJEITIN, Justice of the Peace. No. 5. From Messrs. Akerberg & Behrens book, shipping and landing agents,, Cape Town : March, 1864. — To shipping to^steamer Alabama, 208J tons coal, 80 tons stores, for account of Messrs. William Anderson, Saxon & Co. Eaphael Daniel Norden, of Cape Town, Cape of Good Hope, maketh oath and saith, that the aforegoing is a true and faithful extract made by this deponent from the books kept by the late firm of Akerberg & Behrens, shipping and landing agents, Cape Town. E. D. NOEDEN. Sworn at Cape Town, Cape of Good Hope, on this 3d day of No- vember, 1871, before me. E. LESUEE, ■Justice of the Peace for Cape Town. No. 6. From Mr.E. S. Atwell's book, bread and biscuit baker. Cape Town: [738] *March 24, 1864.— To 13,000 pounds biscuit supplied to steamer Alabama, for account of Messrs. William Anderson, Saxon & Oo. Eaphael Daniel Norden, of Cape Town, Cape of Good Hope, maketh oath and saith, that the aforegoing is a true and faithful extract made by this deponent from the books of Mr. E. L.Attwell, bread and biscuit baker. Cape Town. E. D. NOEDEN. , Sworn at Cape Town, Cape of Good Hope, this 3d day of November, 1871 , before me. E. LESUEE, Justice of the Peace for Gape Town. countek case op the united states. 195 United States Consulate, Cape Town, October, 1871. SiE : I have the honor to bring to your notice that the Department of State, Washington, has called upon me to collect information rela- tive to the proceedings of the confederate vessels which touched at the Cape during the years 1863 and 1864, more especially those of the Ala- bama. I find I cannot obtain particulars of the stores and coals supplied to the latter vessel except from the custom-house records. I therefore request that you will be so good as to direct a return to be made of all supplies which have been shipped on board the Alabama or other confederate vessels, specifying the quantity entered to [739j *each, and by whom -supplied. I shall feel much obliged by your early compliance with this request. I have the honor to be, sir, &c., W. W. EDGECOMB, United States Consul. His Excellency Sir Henry Barklt, Governor, &c.. Gape of Good Hope. Colonial Oepice, October 17, 1871. SiE : I have the honor to acknowledge receipt of your letter of the 9th instant, wherein you request that instructions may be issued for preparation from the custom-house records of a return, showing all sup- plies shipped on board the Shenandoah and other confederate vessels which touched at the Cape in the year 1863 and 1864, and specifying the quantities entered to each and by whom supplied. In reply, I am directed by his excellency the governor to acquaint you, that upon refer- ence to the honorable the collector of customs, it appears that, as the vessels in question were viewed as " men-of-war" and treated as such, no account was taken by that officer's department of the coals, &c., supplied thereto. His excellency therefore regrets his inability to fur- nish the information which you desire. I have the honor to be, sir, «Scc., CHAELES MILLS, [740] (Signed for the) Colonial Secretary. W. W. Edgecomb, Esq., Consul for the United States of America, Cape Town. A true copy from the original exhibited to me this day by W. W. Edgecomb, United States consul. Cape Town. [SEAL.] G. J. DE KOSTE, Notary Public. , Cape Town, November 2, 1871. United States Consulate, Cape Town, October 21, 1871. SiE : I have the honor to acknowledge the receiptof your letter of the 17th instant, in answer to mine of the 9th. I regret that you can give me no information concerning the transactions of the Alabama, and other confederate vessels at this and other ports of the colony, during the years 1863 and 1864. By referring to the Cape Argus of September 22, 1863, 1 find that the Alabama was in Simons Bay, and that Captain Semmes reports that he is expecting the steamer Kadie from Table Bay ■with 200 tons of coals.' I also learn that the Kadie did clear from 196 TEE AT Y OF WASHINGTON. [741] this port ou the ITtli of September, *1863, with 180 tons of coals and other stores for Simons Bay, and that the coals and stores were put on board the Alabama at the latter port. On application being made at the custom-house (by a person employed by me) to examine the manifest of steamer Kadie, it was refused unless he could show an order from you. Will you please to order a copy of manifest from this port and Simons Town, for my use. I have the honor, sir, &c., W. W. EDGECOMB, United States Consul. His Excellency Sir Henky Baekly, Governor, i&c, of the Cape of Good Ri)])e. Protest. United States CoNstfLATE, Cape Town, August 4, 1863. Sir: From reliable information received by me, and which you also are doubtless in receipt of, a war-steamer called the Alabama is now in Saldanha Bay, being painted, and discharging prisoners of war. The vessel in question was built in England to prey upon the commerce of the United States of America, and escaped therefrom while on a trial- trip, forfeiting bonds of £20^000, which the British government exacted under the f oreign-enlistmen t act. ISTow, as your government h as a treaty of amity and commerce with the United States, and has not re- [742] cognized the persons in re*volt against the United States as a government at all, the vessel alluded to should be at once seized and sent to England, from whence she clandestinely escaped. Assuming that theBritish government was sincere in exacting the bonds, you have doubt- less been instructed to send her home to England, where she belongs. But if, from some oversight, you have not received such instructions, and if you decline the responsibility of making a seizure, I would most respectfully protest against the vessel remaining in any port of this colony another day. She has been four days in one bay of the colony already, and a week previously on the coast, within three leagues of the land, and has forfeited the right to remain an hour longer by this breach of neutrality. Painting a ship does not come under the head of neces- sary repairs, and is no proof that she is unseaworthy, and to allow her to visit the other ports after she has set the Queen's proclamation on the subject of belligerent rights at defiance, would not be regarded as in accordance with the spirit and purpose of the document. Yours, with most distinguished consideration and obedience, WALTER GRAHAM, United States Consul. His Excellency Sir Philip E. Wodehouse, Governor. True copy of the original on file at this office. [SEAL.] W. W. EDGECOMBE, United States Consul. Cape Town, Ocioher 12, 1871. .[i] *OOXJN'TEIl O^SE PEESENTED ON TUB PART OF THE GOVERNMENT OF HER BRITANNIC MAJESTY TRIBUNAL OF ARBITRATION CONSTITUTED ■TOTDER ARTICLE I OF THE TREATY CONCLUDED AT WASHINGTON ON THE 8th may, 1871, BETWEEN HER BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA. (i»] *TABLE OF CONTENTS. PAET I. INTRODUCTORY STATEMENT. Geneva Present edition, edition. Page. Page. Vessels to wliioli the claims of the United States relate 1 203 General character of the evidence adduced by the United States 2 204 Opinions of contemporary writers'quoted by the United States 3 205 PAET II. ARGUMENT OF THE UNITED STATES ON NEUTRAL DUTIES. Propositions afarmed by the United States 5 207 Effect ascribed to British laws and regulations as interpretations of International law 6 209 Alleged duty of a government to enforce its own laws and regulations . 9 213 Extent of neutral obligations as deduced from the three rules of the treaty of Washington, and from general principles of international law 11 215 (A.) Original equipment, &o., of belligerent vessels in neutral ports (B.) Admission of belligerent vessels into neutral ports » First limitation suggested by the United States Further limitation suggested by the United States What is "due diligence" 11 216 13 218 15 220 16 222 21 228 PAET III. . PRECEDENTS APPEALED TO BY THE UNITED STATES. 1. Case of the Swedish ships, 1825 2. Violations of American neutrality in 1793-'94 Decisions of the commissioners under the seventh article of the treaty of 1794 ". Case of the Gassius 3. Violations of American neutrality during the war carried on by Spain and Portugal against the Spanish-American colonies Correspondence between the United States and Portugal i Correspondence between the United States and Spain 4. Later violations of the American neutrality laws. . Expeditions of Lopez against Cuba, 1850-51 Walker's expeditions against Mexico and Central America, 1853, ' 1855, 1857, 1858, 1859, and 1860 Fenian raids against Canada Eaidofl866. Second raid on Canada, 1870 Eaidofl871 Military expeditions in aid of the Cuban insurrection Recapitulation 24 232 25 234 29 240 31 241 31 242 32 243 34 246 36 248 36 248 37 250 40 254 41 255 44 258 45 260 45 260 47 262 200 TEEATY OF WASHINGTON, [iv] *PAET IV. VARIOUS COMPLAINTS OF THE UNITED STATES AGAINST GREAT BRITAIN.— TRATFIC IS MUNITIONS OF WAR, (PAGE 48.) G-eneva Present edition. edition. Page. Page: Arms and military supplies purchased by the United States Arms and military supplies purchased by the Confederate States. ..... Blockade-running and the Nassau trade - False importance ascribed to the proclamation of neutrality Knowledge of facta imputed to the British government Eestrictions on coaling at Nassau - Orders of the 31st January, 1802, in relation to Nassau - 50 275 56 58 277 60 280' 60 281 63 285 65 287 PAET V. THE SUMTER AND NASnVIlLE. The Sumter ■ -- 67 290i The Nashville - 70 295 PAET VI. THE FLORIDA AND ALABAMA, (PAGE 72.) The Florida 73 299 The Alabama 80 308 AeT VII. THE GEORGIA AND SHENjVNDOAH. The Georgia 89 321 The Shenandoah 92 326. PAET VIII. THE CLARENCE, TACONY, ARCHER, TUSCALOOSA, TALLAHASSEE, CHICKAMAUGA, AND' RETRIBUTION. The Clarence, Tacony, Archer, and Tuscaloosa 102 339 The Tallahassee ., 102 339' The Chickamauga 103 339 The Eetribution 104 341 fv] *PAET IX. RECEPTION OF CONFEDERATE CRUISERS IN BRITISH PORTS-. The Sumter and Nashville 107 346 Execution of the rules of January 31, 1862, at Nassau 109 348 TheFlorida at Nassau 110 350 Execution of the rules of January 31, 1862, in other colonies 111 352 The Florida at Barbados Ill 352 United States vessels at Barbados 112- 352 The Florida at Bermuda 113 354 The Chiokamauga at Bermuda 114 .356 United States vessels at Bermuda 115 356 The Alabama at Jamaica 116 3.58 The Alabama, Georgia, and Tuscaloosa at the Cape of Good Hope 116 358 United States vessels at the Cape of Good Hope 117 359 Eeoapitulation 117 360 Course pursued by other countries 119 362 1. Holland 119 362 COUNTER CASE OF GREAT BRITAIN. 201 Course pursued by other countries — Continued. 2. Brazil 3. Russia , 4. France •. The Rappahannock The Stonewall 5. Spain and Portugal Geneva Present edition. edition. Page. Page. 120 363 121 365 121 366 122 366 122 367 123 367 PART X. CONCLUSIOX. Recapitulation of the argument for Great Britain 124 369 Compensation claimed by the United States. General principle < 131 378 Claims for private losses , 134 383- Claims for national losses by the destruction of public property in the UnitedStates > 137 386. Claims for expenditure alleged to have been incurred in the pursuit of confederate cruisers 137 387 Claim of the United States for interest , 140 391 Eeoapitulation.of preceding remarks on the measure of compensation. 141 392 Concluding remarks 1 141 393 ANNEX (A.) Note on the question referred to at page 12, (equipment of belligerent vessels in neutral ports) 143 395 ANNEX (B.) The British and American foreign-enlistment acts 149 403 ANNEX (C.) Position and duties of the law-officers of the Crown in England 153 409» IiJ *PART I. liNTRODUCTORY STATEMENT. The government of Her Britannic Majesty now presents to the tri- bunal of arbitration its counter case, or reply to the case p„^ i.-introd™. submitted on the part of the United States, so far as a reply ^"^ »«"™=''»- appears to be necessary or admissible. To the second chapter of the American Case, which imputes to the British G-overnment hostile motives, and even insincere neutrality, no reply whatever will be offered in this counter case. The British govern- ment distinctly refuses to enter upon the discussion of these charges^ First, because it would be inconsistent with the self-respect which every government is bound to feel ; secondly, because the matter in dis- pute is action, and not motive, and therefore the discussion is irrele- vant; thirdly, because to reply, and to enter upon a retaliatory exposi- tion, must tend to inflame the controversy which, in the whole tone and tenor of its case, the British government has shown its desire to ap- pease; and lastly, with respect to the charges themselves, if they were of any weight or value, the British government would still contend that the proper reply to them was to be found in the proof which it has sup- plied that its proceedings have throughout, and in all points, been gov- erned by a desire, not only to fulfill all clear international duties toward the Government of the United States, but likewise, when an opportu- nity was offered, even to go beyond what could have been demanded of it as of right, in order to obviate all possibility of cavil against its con- duct. M'either will this counter case contain any reference whatever to the subject of indirect losses. Her Majesty's government is engaged in a correspondence with the Government of the United States on this sub- ject, pending which this counter case is presented, without prejudice to the position assumed by Her Majesty in that correspondence, and under the reservations more particularly stated in a note accompanying it, which will be, at the same time, delivered to the arbitrators. VESSELS TO WHICH THE CLAIMS OF THE UNITED STATES RELATE. Her Britannic Majesty's government believed itself to be, and was in fact, justly entitled to assume that the claims which it ^^^^^^^ ^ ^^.^^ had to meet would be found to relate exclusively to the thedaimaofthenni- „ .- y~i* J ted States relate. lour vessels known as the Honda, Alabama, Georgia, ana Shenandoah, or some or one of them ; these being the only ships in respect of which claims had been made by the Government of the Uni- ted States against Great Britain. It appears that, besides claiming on account of all of these four vessels, the United States now claim on account of nine other vessels, none of which are alleged to have been in any manner armed, fitted out, or equipped for war within British 204 TEEATY OF WASHINGTON. territory. Three of these are stated to have been captured, armed, and employed as tenders by the officer commanding the Florida during the cruise of that vessel, and one by the commeinder of the Alabama. Of two others, the Sumter and Nashville, it is alleged only that they received hospitalities in British ports, while cruising as ships of war of the Confederate States ; of two more, the Tallahassee and Chickamauga, that, having been originally built in England, and employed in carrying cargo to and from ports of the Confederate States, they were con- verted into cruisers by the confederate government ; and of the ninth, the Eetribution, that her commander contrived on two occasions to carry a prize captured by him on the high seas into the territorial waters of an island belonging to Her Majesty's dominions, and there, to dispose of or destroy the cargo. [2] *As to all of these nine vessels, but more especially as to five of them, it might justly be maintained that they ought not to be reckoned among the vessels which have given rise to the claims gener- ically known as the Alabama claims, and that no complaints in respect of them ought to be considered or received by the arbitrators. Her Britannic Majesty's government, however, has not thought proper to raise this objection. It contents itself with directing the attention of the tribunal to the fact that neither in the course of the war nor dur- ing the long period which has elapsed since its conclusion have any claims whatever been made upon Great Britain by the United States on account of any of these vessels. Thiere have been further introduced into the list of claims losses for captures by two vessels, named the Boston and Sallie, which are not mentioned in the Case, and expenses said to have been incurred in the pursuit of a third, (the Chesapeake,) as to which the Case is equally silent. Her Majesty's government presumes that this has been done through inadvertence. No award can be made which shall comprehend or take into account the acts of vessels as to which the United States have not even alleged any failure of duty. GENERAL CHARACTER OF THE EVIDENCE. It would be superfluous to remind the tribunal that the conclusions General chnr»cter ^t whlch It wlU arrlvo must of ueccssity be formed, not juce'j brihe°if„ited upon what the Government of the United States may states. allege, but upon what it shall be able to prove. Nor can it be necessary to point out that, while it is not the duty of the tribunal to apply to the evidence produced on either side rules drawn from the law or methods of procedure established in any particular state, the credibility and value of that evidence must nevertheless be tried by those general principles of reason and justice which are applicable to all testimony, in whatever forum it may be offered, for whatever pur- pose, or under whatever circumstances. But it may be convenient that the attention of the arbitrators should at the outset be directed to the character of some portions of the evidence on which the United States rely. Much of the evidence adduced on behalf of the" United States has been also laid before the arbitrators by Great Britain, either as sup- porting the case of Her Britannic Majesty's government, or as forming part of the oflScial correspondence and other materials of which it was proper that the arbitrators should be in possession before proceeding to adjudicate on the matters referred to them. Much, therefore^ of the evidence on each side is common to both, thougb the two parties differ in the use which they respectively make of it. COUNTER CASE OF GREAT BRITAIN. 205 Among the other documentary evidence cited or referred to in the Case of the United States are reports and dispatches from consuls or consular oflicers of the United States, who were during the war, or have since been, resident in ports within Her Majesty's dominions. Of these persons it may be assumed that they were gentlemen worthy of credit when relating anything within the range of their personal knowledge. As to statements made by them on the authority of others the credit to, be attached to these must depend in every case on the knowledge amd veracity of the informant, not on those of the reporter of the infor- mation. Statements made on the ground of alleged notoriety or public ramor are evidence only — and that of a very vague and unsatisfactory kind, since little reliance can be placed on assertions which, from their very nature, there can be no means of testing — that a number, greater or less, of persons who are themselves unknown, and whose credibility and means of information are likewise unknowa, believe, or have re- ported, a supposed fact to be true. It should be added that these officers were, as was natural, zealous — sometimes to indiscretion — in the cause of their Government; that they shared to the full, with their countrymen at home, in the excited and irritable feelings which are generated by civil war, and were, like their Government, firmly impressed with the erroneous idea that all armed vessels of the Confederate States ought, in foreign ports, to be regarded and treated as piratical. The admission of a confederate ship on the same terms as a United States ship was by itself, in their view, an offense against the United States ; and this error led them into many misconceptions and colored through- out the reports which they addressed to their Government. The Government of the United States has appended to its Case, and has frequently referred to and invoked as evidence against Great Britain, a mass of confederate papers, the greater part of which consists of correspondence said to have passed between per- sons who were hired and employed during the war for various pur- poses by the confederate government and officials of that govern- ment, while the rest is of a private and still less authentic char- acter. Most of these papers are said to have been " captured [3] *at the taking of Richmond, and at other times ; " and they, or such portions of them as the Government of the United States has thought fit to make public, are now made known to Her Britannic Majesty's Government for the first time. Of the authenticity of them and of the manner in which they came into the possession of the Government of the United States, Her Britannic Majesty's government has no knowledge whatever beyond that which it derives from the above-mentioned statement, which it willingly accepts as true. Of the persons by whom and the circumstances under which the letters were written, and of the character and credibility of the writers, it knows nothing whatever. They are persons with whom this government had nothing to do and whose very existence was unknown to it; and it does not admit as evidence against Great Britain any statements which they may have made to those who employed them or to one another. Some notice must here be taken of the use which has been made, in the Case of the United States, of opinions recently expressed by one or two living writers respecting the matters referred to the tribunal. One of these (Dr. Bluntschli) is a jurist of celebrity, who, in the short paper written by him on the subject, has with great propriety guarded him- self against being supposed to pronounce any decisive opinion, frankly admitting the inadequacy of his information, which, indeed, he appears to have derived entirely from a speech delivered in the Senate of the 206 TREATY OF WASHINGTON. United States. On this point, however, Her Britannic Majesty's govern- ment has but one remark to make. Whatever qualifications these writ- ers might be found to possess for forming a judgment on the question, if they had been acquainted with the facts — a matter on which Her Majesty's government has no opinion to express — they are not the per- sons selected as arbitrators in this case. The eminent persons who have been so selected will form their conclusions under the definite sense of responsibility proper to a high and regularly constituted judi- cial tribunal, after hearing both sides, and upon a full and complete knowledge, such as no man can possibly have possessed before, of all the facts of the case ; and Her Britannic Majesty's government is well as- sured that they will feel it to be, as it is, their first duty to form those conclusions for themselves, upon the facts and arguments brought be- fore them, absolutely uninfluenced by any opinions which any writer, be he who he may, has permitted himself to express, whether on one side or on the other. It is well known to the arbitrators that when, on former occasions re- corded in history, jurists have undertaken to determine the merits of international questions actually in controversy, the judgments so pro- nounced have been held questionable, as open to the suspicion of parti- sanship, and have in fact been often influenced by a bias, the precise causes of which it might be di£6cult to ascertain. This alone is suifi- cient reason why weight should not be assigned to opinions put forward post litem motam. [5] * P A R T 1 1 , ARGUMENT OF THE UNITED STATES ON NEUTRAL DUTIES. PROPOSITIONS APPIKMBD BY THE UTSTITBD STATES. In Part III of the Case of the United States an endeavor has heen made to furnish the arbitrators with a definition of the du- p^„^ n_Arso- ties which Great Britain, as a neutral power, was bound to slSLo'nMitS'du'? observe toward the United States during the war. At the "°'- close of an elaborate dissertation on this subject, the Government of the United States sums up the conclusions which it conceives itself to have established, in the form of twelve proposi- firmedby'SeumtS tions. These propositions it regards as governing the ques- ""''°' tions involved in the claims which it submits to the arbitrators. Her Majesty's government believes that it will adopt the course most convenient to the tribunal, by explaining at once and in the first place how far it assents to the propositions laid down by the United States and how far it dissents from them ; examining afterward, so far as may be necessary, the grounds on which the conclusions of the United States are formed, and stating its own conclusions on such points as appear to be in dispute. The propositions advanced on the part of the United States are the following ;! " 1. That it is the duty of a neutral to preserve strict and impartial neutrality as to both belligerents during hostilties." The British government willingly assents to this proposition. No one, indeed, has yet been found to deny that it is the duty of a neutral power to be neutral; or that neutrality is, by its very definition, a con- dition of impartiality in matters relating to the war ; or to afiirm that it is possible to be neutral as to one of two belligerents without being neutral as to the other. .._^,, ''2. That this obligation is independent of municipal law." ^7™ The British government accepts this proposition also. "3. That a neutral is bound to enforce its municipal laws and its ex- ecutive proclamation, and that a belligerent has the right to ask it to do so, and also the right to ask to have the' powers conferred upon the neutral by law increased, if found insufficient." The British government does not dispute that a belligerent govern- ment may, if it think fit, ask for any of these things. But that a neu- tral power is under an international obligation to comply with the re- quest, or to enforce its municipal laws and all proclamations or orders issued by the executive government, is far from being universally true ; t is admissible only under very material qualifications, which will be ' Case of the United, States,, pp. 210 et seq. 208 TREATY OF WASHINGTON. / presently stated. Still less can it be admitted to be generally true that a belligerent power has a right to call upon the neutral state to make changes in its domestic legislation. " 4. That a neutral is bound to use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a power with which it is at peace. " 5. That a neutral is bound to use like diligence to prevent the con- struction of such a vessel. " 6. That a neutral is bound to use like diligence to prevent the de- parture from its jurisdiction of any vessel intended to cruise or carry -on war against any power with which it is at peace, such vessel having been specially adapted, in whole or in part, within its jurisdiction, to warlike use. " 7. That a neutral may not permit or suifer either belligerent to make use of its ports or waters as the base of naval operations against the other. "8. That a neutral is bound to use due diligence in its ports or waters to prevent either belligerent from obtaining there a renewal or augmentation of military supplies, or arms for belligerent vessels, or the recruitment of men." Great Britain adheres to the three rules inserted in Article, VI [6] of the treaty of *Washington, and accepts them in the words iii which they are there expressed, while it considers those rules as exceeding in some material respects the obligations which, independ- ently of them, could have been established by international law against a neutral power free from all engagements on the subject, direct or in- direct, with a belligerent. The British government is willing to discuss the construction of these rules, but declines to admit any. deviation from or enlargement of them. The statement that a neutral government "is bound to use like diligence to prevent the construction of such a vessel" appears to Her Majesty's government to be such a deviation or enlarge- ment. It is, in fact, a simple interpolation. I^^or can the propositions numbered 7 and 8 be accepted as a correct representation of the second and third rules. "9. That when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters, in any of the foregoing respects, the neutral should make compensation for the in- jury resulting therefrom." The British government does not admit this proposition as it stands; but it agrees that, where an' appreciable injury has been directly caused by a violation of a clearly-ascertained international duty, suitable repa- ration ought to be made to the injured party. " 10. That this obligation is not discharged or arrested by the change of the offending vessel into a public man-of-war. " 11. That this obligation is not discharged by a fraudulent attempt of the offending vessel to evade the provisions of a local municipal law. " 12. That the offense will not be deposited so as to release the lia- bility of the neutral even by the entry of the offending vessel in a port of the belligerent, and there becoming a man-of-war, if any part of the -original fraud continues to hang about the vessel. Her Majesty's government must observe, with all respect for the Government of the United States, that it can neither admit nor deny propositions to which it finds itself unable to attach a distinct meaning. It is not for the British government to contend that any obligation, •either of a government or of an individual, which has not been fulfilled COUNTER CASE OF GREAT BRITAIN. 209 can be discharged by subse-quent proceedings, such as are here sup- posed, of others parties. But if it be meaut to suggest that, in any such case, the default of the neutral power is not limited to the acts done or omitted to be done on its part, within its own territory, but is to be deemed a continuing default, or series of defaults, during the whole or some part of the subsequent proceedings of the offending vessel beyond its jurisdiction, the British government must demur altogether to such a doctrine, as unknown to international law and opposed to reason and principle. ARGUMENT OF THE UNITED STATES. — ^EFFECT ASORIBED TO BKITISH LAWS AND KEGTJLATIONS AS INTEEPKETATIONS OF INTERNATIONAL LAW. The differences wbich exist between the British government and that of the United States arise partly in the statement of prin- ciples, but more in the application of them to facts admitted BriiisTif'w" ''a.'S or proved. The latter government has prefixed to its twelve ?«?£"" S SHi','- ... ^ ill j.i_-i J.1 national law. propositions a lengthened argument, whica appears to be designed to prove that, if not true in themselves, they are true against Great Britain ; and that, if true in themselves, they ought to be applied against her with exceptional and pecular rigor. This argument ap- pears to the British government to contain errors of the gravest kind.. The source of these errors is manifest. The Government of the United States is not satisfied to rely upon the three rules embodied in the treaty, coupled with the general i^rinciples of international law not inconsistent with them, as sufficient to support the claims urged against Great Britain. It desires, therefore, to persuade the arbitrators to apply to the conduct of Great Britain, not the general standard of neu- tral obligation which, under corresponding circumstances, they would apply to the United States, or to any other power which had accepted those rules, but a stricter and more rigorous standard, drawn from the municipal laws of Great Britain, from administrative acts of the British government, or from declarations of British statesmen. The positions contended for by the United States are in substance as follows : 1. The municipal laws of Great Britain and the administrative acts of her government are'to be regarded as defining as against herself her conception of her international duties. What these laws or acts prohibit, she must be assumed to regard as prohibited by the law of nations, and by that standard she must be tried. In short, where her conception of international duty, thus measured, appears to fall short of the common standard, it is to* be disregarded ; in every other case it is to be assumed as the measure of what she owes to other nations, though not as the measure of what other nations owe to her. 2. Independently of this theory. Great Britain is under an in- [7] ternational obligation to *execute her municipal laws and enforce her proclamations and ordinances where they are for the advan- tage of other nations. 3. In the performance of these duties Great Britain is bound to use "due diligence,"_ by which is meant an exercise of active vigilance and an effectual use of all the means within the power of the government. 4. Failing to use this due diligence. Great Brita,in is bound to make compensation for any injury resulting from such failure. It is necessary to state these positions clearly, because they are ex- pressed with some .vagueness in the Case of the United States. 14 A— n 210 TREATY OF WASHINGTON. Such, then, is the general measure of neutral duties which the Gov* eminent of the United States has adopted, and endeavors to persuade the arbitrators to adopt, in support of its claims against Great Britain. To state the first of this series of positions is to confute it. If it were a true assumption that the municipal laws of a state, wherever they prohibit acts which may afi'ect the security or interest of other states, must have been founded, not on considerations of policy and expedit&cy, but on conceptions of international obligation, it would nevertheless be impossible to contend, with any show of reason, that, by these concep- tions, and not by the general rules of the law of nations, the state was to be judged in any international controversies in which it might become engaged. Such a rule, it is evident, would produce the most fantastic consequences. In place of a common and equal standard of obligation, we should then have a varying and unequal one, varying with the nations to which it was applied and with the notions of duty which they might from time to time entertain. It would be as reasonable to contend that a question between private litigants ought to be decided, not by the law, but by what the defendant had supposed to be the law, provided that the plaintiff could show that the difference was in his o\tu favor. It is not, however, a true assumption that whatever the laws of a state prohibit in matters affecting the security or interests of other states, it must have held itself bound to prohibit by force of an inter- national obligation. This is a hypothesis as groundless as it is un- reasonable; for the primary and immediate object of municipal law is the protection of the security and interests of the state itself and its citizens, and it is clear that, with a view 'to this object, it may be, and frequently is, expedient to prohibit, in relation to other states, acts not prohibited by the law of nations. The theory of the United States would assume that this never is or can be expedient. This observation applies with all its force to those municipal laws which are sometimes styled "neutrality laws." Such laws belong to the class which, in the codes of some European nations, are described as having for their' object the protection- of the internal and external security of the state. Thus, by the penal code of France it is made au offense to levy or enroll soldiers without the authority of the govera- ment, and penalties of various degrees of severity are denounced against any persons who, by acts not approved by the government, may havfe exposed French citizens to reprisals or the state to a declaration of war. These provisions have been adopted in the penal code of the kingdom of Italy, in that of the Netherlands, and by other countries. The law known in England as the foreign-enlistment act of 1819 be- longs to the same class. The considerations on which it is founded are thus stated in the preamble : Whereas the enlistment or eDgajferaent of His Majesty's subjects to serve in war in foreign service witliout His Majestj''s license, and the iittiug out and equipping and arming of vessels hy His Majesty's subjects without His Majesty's license, for warlike operations in or against the dominions or territories of any foreign prince, state, or potentate, or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province, or against the ships, goode, or merchandise of any foreign prince, state, potentate, or persons afore- said, or their subjects, mail he prejudicial to and tend to endanger tlie peace and welfare of this kingdom; and whereas tbe laws in force are not snffioiently effectual for preventing the same : be it therefore enacted, &c. Laws of this kind serve, among other purposes, that of enabling m assisting the state which enacts them to discharge, when a neutral iu war, .the -duties, and protect tbe rights, of neutrality, and they may COUNTER CASE OF GREAT BEITAIJf. 211 therefore, with perfect propriety, be described as having that object ia view. Bat their main, thougli not always their sole, purpose is to re- strain whatever may tend to imperil the relations of the state with for- eign powers ; they are framed on those considerations of' expediency by which all legislation is governed ; and, as they may stop short in some respects of the provisions of international law, so they may transcend tbein in others. It has sometimes been argued, indeed, though not with success, that the law of nations should be regarded as furnishing an interpre- [8] tation of the foreign-enlistment act, *and confining its scope to acts which can be shown independently to be within the prohibi- tions of that code.^ But that the act should, on the contrary, be viewed as extending the prohibitions of the law of nations, was never, to the knowledge of Her Majesty's government, contended by any one, and ■such an argument would certainly receive no attention from any judicial tribunal.^ The'G-overnmentof the United States has appealed, in support of this erroneous notion, to certain English authorities; and the manner in which it has referred to them cannot be left unnoticed. The following sentence is given as a quotation from a dispatch signed by Earl Eus- ' See the argument of the counsel for the defendants in the Alexandria case, (Appen- dix to the Case of the United States, vol. v, pp. 183 et seq^.) 'A construction contrary to that which the United States contend for against Great Britain has been placed by. the Government of the United States on its own law. In 1841 the then Attorney-General was called upon to advise whether the building in the United, States of vessels of war for the government of Mexico, to be employed against Texas, was prohibited by the act of 1818. Mr. Legar(5 advised ("whether riglitly or wrongly is not material) that it was so, on the following grounds: "The reasoning on tllissubject is shortly this : the policy of this country is, and ever has been, perfect neu- trality and non-interference in the quarrels of others ; but by the law of nations that neutrality may, in the matter of fnrnishing military supplies, be preserved by the two opposite systems, viz, either by furnishing both parties with perfect impartiality or byfurnishing neither. For the former branch of the alternative it is superfluous to cite the language of publicists.' which is express, and is doubtless familiar to you. If you^sell a ship of war to one of the belligerents, the other has no right to complain, so long as you offer him the same facility. The law of nations allows him, it is true, to .confiscate the vessel as contraband of war, if he take her on the high seas : but he ha..f no ground of quarrel with you for furnishing or attempting to furnish it. But, with a full knoioledge of this undoubted right of nmUrals, this country has seen fit, with regard to -skips of war, to adopt the other branch of the aUer7iative— less profitable with a view to commerce, but more favorable to the preservation of a state of really pacific feeling within her borders : she has forbidden all furnishing of them under severe penalties. The memorable act of 1794 consecrated this policy at an early period of our Federal history, and that act was only repealed in 1818 to give place to an equally decided ex- •■pression of the legislative will to the same effect. Whatever may be thought of the spirit and policy of the law, its scope and objects are too clear to be misunderstood ;. and I am of opinion that the case stated by Mr. Curtis falls fully within the purview of the third section." Mr. Legar^ afterward wrote a further opinion to the same effect, holding that " all trafliug with a belligerent in ships of war, ready equipped for service, was contrary to the law of the United States." "The accompanying prohibition in the statute of all enlistments in the United States furnishes a strong ground to support this opinion. ■Sueh enlistments (if voltrntary) are no more against the law of nations than equipping and ftirnishing ships; yet it will not be pretended that any attempt to enlist an American • eii|lz«n within our borders, however covert and cautious, and wherever the service is to be rendered, or the first step toward it taken, is not utterly prohibited by the act. -However popular opinion'may have recently changed on so! important a subject, this act, like that of 1794, was intended to secure, beyond all risk of violation, the neutral and pacific policy which they consecrate as our fundamental law. The framers of both •acts knew peifectli/ well that they were denying to our citizens rights which the law of nations -■alUwedthem to exerdsein good faith for commercial purposes. They knew the price they were .paying for peace, but tJhey were willing to pay it. This- act is a proof of iti" — (OpijjiOns of Attorneys-General of the United States, vol. iii, pp. 738,741 ; Appendix to British Case, vol. v, pp. -360, 363.) 212 TEEATY OF WASHINGTON. sell: "That the foreign-enlistment act is intended in aid of the duties * * of a neutral nation."^ What were the words of Earl Eussell? They were these : " That the foreign-eiili!5tinent act, which was intended in aid of the duties and rights of a neutral nation, can only be applied," &c. The meaning of the sentence is altered by leaving out two of the most important words. Agaiu, the report of a commission appointed in 1867 to consider the laws of Great Britain " available for the enforce- ment of neutrality," is thus referred to : The tribunal of arbitration will search the whole of that report, and of its Van'msS "appendixes, m vain to Hud aiiy indication that that distingnished body imaginedy/OT thought, or believed that the measures which they recommended were not "in fjiiil conformity with international obligations." On the contrary, the commissioners, say that, so far as they can see, the adoption of the recommendations will bring the liiiini- bipal law into full conformity with the international obligations. Viewing their acts in the light of their powers and of their instructions, the United States feel themsdSes justified in asking the tribunal to assume that that eminent body'regarded the-^ipts which they proposed to prevent by legislation as forbidden by international law.^ ., What is the passage which the Government of the United Stateshas referred to, but has refrained from extracting? It is this: In making the foregoing recommendation3 toe lime not felt o-urselveK ioimd to consider ■ whether ice were exceeding what could aotuaUi/ Tie required 6// internatioiial law, but we are of opinion that, if those recommendations should be adopted, the municipal law of. this realm, available for the enforcement of neutrality, will derive increased efficiency, aid will, so far as we can see, have been brought into conformity with your Majesty-B- international obligations.' [9] *Thns by leaving out the words in which the commissioher'g observe that their recommendations may exceed the requiri^- ments of international law, and by using in one sense words which (as the context proves) they employed in another, they are represented' as saying the very thing which they expressly guarded themselves froin being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by iuternatioiial law.* , ,' ,^ The Government of the United States further assumes that, the same false principle is to be applied not only to laws, but to the proclama- tions, orders, and regulations issued during a war by neutral nations. These also are to be supposed to prohibit nothing which the govern- ment that issues them does not believe to be interdicted by international law. Her Majesty's government had supposed that the nature of these acts and orders was a thing perfectly well understood by the United States, as it certainly is by maritime nations lu general. They are universally understood to be acts done in the free exercise of that right which every sovereign state possesses to regulate the access of bel- ligerent vessels to its ports. They convey no admission whatever that 'Case of the United States, p. 108. nbid.,p.l76. ' See Eeport of the Commission; p. 5 ; Appendix to British Case, vol. iii ; Appendix to Case oi the United States, vol. iv, p. 82. ■ ' ■• At page 117 of the Case, the judge of the high court of admiralty (Sir E. J. Philli- more) is cited as having stated (very justly) that the act of 9th August, 1870, has,the effect of enabling the British government to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct ot Her Majesty's subjects toward belligerent foreign states with which Her Majestj' is at peace. No doubt it has. This quotation is as irrelevant as those introduced at pp. 118^122, in order to prove that the law of nations has been regarded as forming part of the com- mon law of England, a proposition sometimes stated too largely, bat which, oorreGtly understood, has been denied by no .one, and in no way assists the argument of the United States. * , COUNTER CASE OF GEEAT BRITAIN. 213 ■wliafc tbey enjoiu is enjoined, or that what they prohibit is prohibited, by the law of nations. In some cases this may be so; commonly it is not so. But the acts themselves, whether they happen to coincide with rules of international ^law or not, are voluntary and discretionary. They are done in exercise of a right, not in performance of an obliga- tion. The foregoing remarks have been drawn from the British government by the attempt made in the Case of the United States to introduce into Jjiis controversy an assumption which is clearly erroneous: the assump- tion, naaiely, that whatever is or was prohibited by British law or by the orders or proclamations of the British government ought, as against Great Britain, to be held to be prohibited by the law of nations. / Thus it is asserted^ that all the acts prohibited by the 2d, 5th, Gth, 7th, and 8th sections of the foreign-enlistment act must be held, as against Great Britain, to be acts which a neutral government "ought," or "was bound," not to permit to be done within its jurisdiction, and were viola- tions of the international duties " of a neutral ;" that the foreign-enlist- ment act defines and recognizes the "principles and duties" "obligatory on the nation in its relations with other powers;" that the act of 1870 was "intended, at least as against the British government, as a re enact- ment of the law of nations ;" that the restrictions placed by the British government on the stay of belligerent vessels iu its ports are to be re- garded as commanded by international law, instead of being, what they really were, regulations issued in the free exercise of the sovereign rights of a neutral power ; lastly, that the supposed rules or principles of international law thus extracted from British laws and ordinances may and ought to be applied by the tribunal against Great Britain, without being recognized by it as applicable under like circumstances against other neutral nations in general. Her Britannic Majesty's government declares, on the contrary, in the most explicit manner, that the law to which it has submitted its con- duct, and by which it has consented to be tried, is the international law recdghized in common by all civilized states, coupled with the three rules embodied in the treaty ; that this law is to be gathered, not from British statutes or ordinances, but from the general consent of nations, evidenced by their practice ; and that the laws and ordinances of Great Britain heirself can be appealed to only for the single purpose of proving that her government was armed with sufficient power to discharge its international duties, and not for the purpose of extending, any more than of restricting, the range of those duties. ARGUMENT OP THE I7NTTED STATES. — ALLEGED DTTTY OF A, GOVEEN- MBNT TO ENFORCE ITS OWN LAWS AND REGULATIONS. At page 211 of its Case, the Government of the United States lays down, asagainstGreatBritain, the general proposition Au^ed duty »» a [10] that a neutral is bound to enforce its laws and its *" ex- K™ irn„r i»w, ecutive proclamation." It appears to contend for the -■"■'=."'"""»™- same proposition at page 108. But, at pages 122, 123, it expressly "guards' itself against being supposed to admit that Great Britain, against ;wbom this supposed principle is pressed, would herself, if the case were reversed, be entitled to the advantage of it against tlie United States or against other nations. The arbitrators, therefore, are solicited to assume that Great Britain was bound to enforce her laws and ordi- 1 Case of United States, pp. 109, 110, 118, 125, 210, 212. 214 TREATY OP WASHINGTON. nances so far as they were in favor of the United States, with the uri'- derstanding that the decision is not to imply that any corresponding obligation was, or is, incumbent on the United States or on other powers toward Great Britain. In defense of this extraordinary suggestion it is pleaded that " iu 1793, during General Washington's administration, the representative of Great Britain in the United States pointed out to Mr. Jefferson, who was then Secretary of State, acts which were deemed by His Britanrm Majesty^s government to be ^breaches of neutrality' done iu 'contravention of the President's proclamation' of neutrality, and he invited the United States to take steps for the repression of such acts and for the restora- tion of captured prizes," aud that ""it appears that the United States com- plied with these requests." It will be seen that the representations then made on the part of this country to the United States were founded on the character of the acts themselves, which were deemed by the British government to be breaches of neutrality, and not upon the fact that they were prohibited by the President's proclamation. Further com- ment on this supposed precedent, which will hereafter be examined for a different purpose, is here unnecessary. The international duties which Great Britain acknowledges toward other states she will at all times hold herself entitled to enforce against them. And she would not have expected that, under any circumstances, the United States could have taken a different view. Disregarding the attempt to confine the operation of it to a single power. Her Majesty's government cannot admit the proposition for which the Government of the United States contends. Setting aside those cases in which the law or ordinance serves only as a means of enabling the government to discharge an antecedent international obligation, and cases in which the omission to enforce it would be an instance of willful partiality or a violation of an express or tacit engagement, it cannot be admitted that a state is bound by any international duty toward other states to execute or enforce its own ordinances or laws within its own territory. A state is bound to enforce the laws which afford protection to life and property, for the benefit of coramorant foreigners as well as for that of its own citizens ; because it is a principle universally rec- ognized that foreign residents obeying the laws are entitled to the protection which they bestow. Here there is an antecedent duty. But a state is not bound to enforce revenue laws of its own, from which au incidental advantage may be reaped by some foreign nation or its citi- zens ; tor here there is no antecedent duty. Still less can it be allowed, in the absence of any antecedent obligation, that in executing its own laws a state is bound, in relation to other states, to the exercise of active vigilance and exact diligence, or that it owes them compensation for any loss they may conceive themselves to have sustained through a default in this respect. The comity of nations, indeed, permits repre- sentations and remonstrances to be made by one government to another in cases where no strict right exists. Nor is Her Majesty's government disposed to deny that cases may occur in which, through a reasonable confidence that the laws and ordinances of a particular state would be executed according to their tenor, losses may have been incurred by' another state or its citizens or subjects for which some reparation might fairly and equitably be made. But the claim for coinpehsation in such cases arises from special circumstances, and appeals to international comity and an enlarged sense of equity, not to strict right. Great Britain is willing to go as far as any state has ever gone in this, direc- tion. The British government has never denied, on the contrary, it has COUNTER CASE OF GREAT BRITAIN. 215 atiSill times freely and readily admitted, that the United States had reasonable ground to expect that the provisions of the foreiga-enlist-i ment act would, like the other municipal laws of Great Britain, be fairly exeoj^ted, even where they might exceed the ascertained limits of the law of nations. This consideration, and the wish that every cause of com- plaint on the part of the United States should be completely ancj effect- ually removed, together with the desire to make satisfactory provision for the future, induced Her Majesty's government, in concluding the treaty of Washington, to consent that a retrospective effect should be given to the three rules inserted in the VI th Article of that treaty. EECAPITTJLATION. The conduct of Great Britain in this matter is to be tried by the three rules of the treaty of Washington, coupled with such [11] general principles of international law, not *iacon- Rscapituintion.- sistent with those rules, as may appear to have been applicable to the case. The general principles of international law are to be collected from those sources to which it is customary to have re- course, and not from the municipal law of Great Britain, nor from ad- ministrative acts or regulations of the British government ; and these are to be applied, as against Great Britain, in the same manner in which they would be applied, under like circumstances, against the United I or any other sovereign state. ARSfUMENT OP THE UNITED STATES. — EXTENT OP NEUTRAL OBLI- GATIONS, AS DEDUCED PKOM THE THREE RULES AND PROM GEN- ERAL ,:pRINGIPLES OP INTERNATIONAL LAW. Her Britannic Majesty's government proceeds to remark upon that part of the Case of the United States in which the Gov- E,te,t of neuidi, emment of the United States has explained and endeavored dSrrom'ibe'ii,r''ee" to support its view of the extent of the duties of a neutral er'aV-,';ci„''L°'°or!S: HflXifPP ' ternational law. The British government deems it right here to observe that the ques- tions subinitted to the tribunal are not of an abstract or speculative character. The arbitrators have not to consider and determine what rules might with advantage be laid dowa for the regulation of the coa- (luct of neutral powers during war ; what, under such rules, would have beea the duty of Great Britain, or whether Great Britain acted in accord- ance with that standard of duty. They have to deal with facts. Inju- ries are alleged to have been inflicted by Great Britain and sustained by the United States. Reparation is claimed for those injuries. There can be no injury without some violation of a duty actually existing at the time.'^ The arbitrators, before they decide against Great Britain, must be satisfied that there was such a violation of duty. They must be , satisfied, therefore, in the first place, that the alleged duty really existed. They must be satisfied, further, that the violation, if any, was such that reparation may justly be awarded for it in money — that is, •that it was the direct cause of some substantial and appreciable loss to the party claiming reparation. ' The general deflnltioa of " ealpa" or "faute" applies to international injuries, as well as to injuries inflicted and sastained by individuals. "Le d(Sbiteur est en faute soit qu'il coutrevient h I'obligatiou de ne pas faire, soit (juand il u'ex^oute pas obligation d'e faire, soit quand il n'a pas apport^ dans I'ex^oution ou dans I'accompliasemeut de cette obligation toiis les soins auxqaels il 6tait tenu." — Le Droit civil frangais, par Zaekmna, annate par G. Masae et Ch. Vergd, see. 548. 216 TREATY OF WASIIINGTON. The neutral duties wMcli it is alleged by the Uuited States that Great Britain failed to discharge are of two classes, which should be kept distinct from each other. They relate to — (A.) The original fitting out^ arming, or equipping in neutral ports of vessels intended for the naval service of a belligerent, a'nd the original departure from the jurisdiction of the neutral of vessels in- tended for such service, and adapted for war wholly or in part within such jurisdiction. (B.) The admission into the ports or waters of a neutral of vessels in the naval service of a belligerent, whether such vessels were or were not originally adapted for war within the jurisdiction of the neutral, and acts done by or in respect of vessels so admitted. The question what measure of diligence or care may justly be dfe- nianded of a neutral government in the prevention of acts on the part of its subjects or citizens which are inconsistent with neutrality, and the question in what cases and on what accounts reparation may justly be awarded, are again distinct from the foregoing, and have to be con- sidered sei)arately. (A.) OEIGINAL EQUIPMENT, ETC., OF BELLIGERENT VESSELS IN NEU- TKAL POETS. As to neutral duties falling under the first of these heads. Her (A.) orisinai Britanulc Majesty's government adheres to what is laid e?m?™"r/il;'neu- dowu lu thc thrcc rules embodied in the sixth article of the trai ports. trcaty, and more particularly in the first of those rules. The British government is well convinced that these rules go beyond any definition- of neutral duty, which, up to that time, had been estab- lished by the law or general practice of nations ; but it refrains from arguing that question, holding that the discussion of it is precluded, except so far as may be necessary for the purpose of dealing with argu- ments founded on an assumed state of international law, as distinct from an undertaking by Her Majesty to act upon the rules. By common consent the rules are, for the purposes of this arbitration, to be [12] *taken as applicable to the case ; it is to be assumed, without dispute ou either side, for the purpose of this arbitration, . that the obligations which they purport to express were such as Grrea.t Britain had undertaken to perform. Since, however, the Government of the United States has thought proper to enter into the question at some length. Her Majesty's govern- ment deems it not improper to repeat here a statement already made in its case presented to the tribunal. " The case," it was there said, '' of a vessel which is dispatched from a neutral port to or for the use of a belligerent, after having been pre- pared within the neutral territory for warlike use, is one which may be regarded from different points of view and may fall within the opera- tion of different principles. The ship herself may be regarded merely as an implement or engine of war, sold or manufactured ^to order within neutral territory, and afterward transported therefrom, and the whole transaction as falling within the scope of the principles' applicable to the sale, manufacture, shipment, and transportation of articles contra- band of war ; or, on the other hand, the preparation and dispatch of the ship may be viewed as being really and in effect the preparation and commencement of a hostile expedition. The circumstances of each case can alone determine from which of these two points of view it may most fitly be regarded, and to which class the transaction ought to be COUNTER CASE OP GREAT BRITAIN. 217 assigned. But the difficulty of drawing a eloar, precise, and intelligible line between these two clashes of transactions has always been consid- erable iu theory and still greater in practice; and it was enhanced to the utmost during the civil war by the ingenuity and audacity of American citizens, who were engaged in carrying on hostilities against fte Government of the United States, and were desirous of availing themselves for this purpose of the ship-building and manufacturing re- sources of Great Britain. This will sufficiently appear from the narra- tive which follows; and it will be seen also how serious and incessant were the trouble and embarrassment which these enterprises occasioned to Her Majesty's government. It is by the many difficulties encoun- tered and by the experience acquired during the war that Her Majesty's government was finally led to the conclusion that it was expedient, not only to enlarge the scope of its municipal law iu relation to this subject beyond what has hitherto been deemed necessary in any other country, but, further, to accept for itself, and propose to other powers, . rules of international obligation somewhat more stringent and comprehensive than are to be found in earlier expositions of the law of nations.'^ The British government believes that the arbitrators would search in vain in text-books of acknowledged authority anterior to the civil war, and in the general practice of maritime nations, for any proof or ac- knowledgment of a duty incumbent on neutral governments to prevent their citizens or subjects from supplying belligerents, with ships adapted for warlike use. They would find it, indeed,, asserted, on the one hand, that among the duties of a neutral government is that of preventing hostile expeditions in aid of either belligerent from being organized within. and dispatched from its territory. They would not, on the other hand, find the sale or delivery to a belligerent by a citizen or subject of the neutral of a vessel adapted for war classed among the acts which the neutral government is bound to prevent, nor would they find auy distinction drawn iu this respect between the sale and delivery of a vessel built to order and that of a vessel not built to order.' It is true beyond controversy that, at the time when the events oc- curred out of which the claims of the United States have arisen, the mere sale and delivery of a vessel adapted for war in a neutral port to a belligerent, and the mere construction of such a vessel to the order and for the use of a belligerent, had not been declared by any authority to be acts which the neutral government was under an obligation to prevent, or which violated any neutral duty. And it must never be forgotten that the obligations of international law are such as have been received and acknowledged by the general consent of nations. No private opinions or theoretical developments of the principles on which they are supposed to rest can ever constitute new international obliga- tions or enlarge the old till they have been themselves generally ac- knowledged and received. It would seem, indeed, to be inconsistent with neutrality for a neutral power to introduce or admit, during war, innovations on these subjects to the prejudice of either belligerent. It is true, also, that it was a question at the least of reasonable and serious doubt, whether either of these classes of acts was a contraven- tion of the municipal law of England or would have been a contraven- tion 'Of that of the United States. Simple justice demands that this 'should be steadily kept in view in determining whether, in any fl3] - of the cases • brought *before the arbitrators, there was, on the *;Sorae citations bearing on this question are collected in an annex (A) at the end of this counter caae. • 218 TJREATY OF WASHINGTON. part of the British government or any of its subordinate ofi^cers^ such a defect of promptitude or decision as to amount to culpable neg- ligence. It is material to be borne in mind, in considering what facts, were known to the government, what those facts proved or did not prove, and what, upon the facts which were known to it, and on which alone it could act, it was the duty of- the government to do. It has been already stated to the arbitrators, in the case presented to them on the part of Great Britain, that, in the judgment of Her Majes-., ty's government and its official advisers, the special adaptation of a ves-, sel to warlike use was among the acts prohibited by the foreign-enlist- ment act, provided there were sufficient proof that she was intended for the' service of a belligerent, although the vessel might not be. actually armed so as to be capable of immediate employment for war. The pro- visions of the acts are not, as has been already observed, to be regarded: as declaratory of the law of nations. But Her Majesty's government agrees that by the second clause of the first rule it was the intention of the high contracting parties to preclude any question on this point from beiug raised before the arbitrators, with reference to the words "fitting out, arming, or equipping" in the first clause. Great Britain does not, on this or any other point, desire to raise or dispute before the arbitrators any doubtful or obscure questions of public law. She desires, on the contrary, that they should be relieved, as far as possible, from the necessity of considering such questions, and she expects from them a fair and just decision on ascertained facts, tried by the application of admitted principles, or of plain and legitimate inferences from admitted principles. She accepts as applicable to the case, and as substantially sufficient for an equitable adjudication on it, the proposition that a neutral government, which has assented to the rules laid down in the sixth article of the treaty, is bound — First. To use clue diligence to prevent the fitting out, arming, or equipping, -vrithiu its jurisdiction, of any vessel which it has reasonable grounds to believe Is intended to crui.se or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, sach vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. Secondly. Kot to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the, renewal or augmentation of military supplies or arms, or the recruitment of mep., Thirdly. To exercise due diligence in its own ports or waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations, and duties. She accepts these rules, not with the refinements of meaning and the overstrai ned rigor of construction which are applied to them in the Case of the United States, but according to their obvious purport, and as they would naturally be understood by persons conversant with the law and practice of nations; and she maintains that the British gov- ernment did not at any time during the war, in respect of any of the vessels to which the claims of the United States relate, or of any other vessels, fail to use the due diligence which the rales require. (B.) ADMISSION OF BBLLiaERENT VESSELS INTO NEUTRAL POETS. , With respect to the admission of belligerent ships of war into neutral rB) Admission or P^^^s, thc priuclples of the law of nations are clearly set- imhsirrfE""' *''^*^' ^^^ ^^^^ '^y *'^® general consent of publicists, but by a long and nearly uniform practice. It is the right of a neutral government, at its absolute discretion, either to refuse admission or to grant it, and extend to the vessels. COUNTfeE CASE OF GEEAT BEITAIN. 219- SO admitted all the ordinary hospitalities of a friendly port, on such conditions, and subject to such regulations, if any, as the neutral gov- ernment may think fit to make; provided 'only that the same facilities be.offered to both belligerents indifferently, and that such vessels be not permitted to augment their military force, or increase or renew tbeir supplies of arms or munitions 'of war, within the neutral territory. A neutral government is not required by the law or practice of nations to place any restrictions whatever upon the liberty which it accords of purchasing provisions, coal, and other supplies, (not being supplies of arms or munitions of war.) It is not a principle or rule of the law of nations that the supplies purchased should be limited to the quantity necessary for enabling the vessel to gain the nearest port of her own country or of an ally. No such principle was ever, so far as Her Majesty's government is aware, admitted or contended for by any maritime power. Ou the contrary, it has been the constant [14J •' practice *to allow belligerent vessels to repair, reflt, and supply themselves with stores and fuQl, with the avowed intention of continuhig to cruise. So also belligerent ships may be either permitted or forbidden, at the pleasure of the neutral, to bring in prizes, to retain possession of them, or even to sell them, although there can be no con- demnation of them as prize by any authority locally, situate within the neutral territory. Special restrictions may undoubtedly be imposed by the neutral government if it think fit, but they may be revoked at any time, and do not confer any right on either belligerent. Ail that a bel- ligerent has a right to demand is, that restrictions imposed on him shall be imposed on his enemy likewise.^ 'These prgpositions are so familiar that they do not need to be supported by the citation of authorities. The subjoined extracts from some of the most reoeut writers of note may, however, serve to illustrate them : ."Les rfegles relatives a I'accfes et au s^jour momentau^ des biltiments dans les ports et dans les rades strangers restent les nuemes en temps de paix qu'en temps de guerre. Sauf les limitations conseuties par traitcS, les ports, les rades, et les mers territoriales jieutrea sontun asile ouvertaux b^timeuts de guerre des bellig&-auts, surtout lorsqu'ils s'ypr^sentent en nombre limits; lis y sont admis a s'y procurer les vivres n^cessaires et !l y faire les reparations iudispensables pour reprendre la nier et se livrer de nouveau aux op6rati- mittod into the ports of the ueutral, even when there is no exigency of hamanity,,hut still under certain reservations. The neutral nation has a perfect right so to measure the extent of the asylum thus accorded as to cover its own safety and retain the means of enforcing respect for its own sovereignty. Thus, in Europe, it generally happens tliat war is commenced between two or three of the great powers for purposes of mutual jealousy or ambition of their own, and as to which the other states are comparatively indifferent in feeling or interest, or have conflicting interests, which impel them to remaiii neutral in the war. But, very soon, as the burden of the war presses on one or another of the belligerents, he, having undertaken more than he can accomplish alone,. seeks to persuade or compel the neutral state to join him. Or he cannot efficiently attack his enemy withont occupying the territory of some neutral state. Or, perceiving that his own commercial resources are wasting away in the war, he looks resentfully on the prosperity of some neutral state, whose commerce flourishes at his expense. Or, jeal- ous of the intentions of a neutral state, and fearing it may join his enemy, he seeks to anticii)ate such an event by crippling the military forces of such neutral state. Or, finally, becoming fatally engaged in a protracted war, until it has at length degenerateid into a mere willful contest of pride and passion, the belligerent enters upon- the des- perate and frantic plan of starving his adversary by cutting off all the Ueutral, com- merce, the very attempt to do which is an outrage on the law of nations, and can be carried out oi'ily by the perpetration of every kind of violence and fraud on the neutral nations." He proceeds to observe that " it is not material whether such regulations operate to the benefit of one or the other belligerent power." The argument of the United States now is, that any hospitalities afforded to belligerent vessels in neutral ports, beyond those which Mr. Gushing described in 1855 as comrnanded by the dictates of humauity, and obligatory on all ueutral powers, are violations of neutral duty. COUNTER CASE OF GREAT BEITAIN. 223 the neutral. It is insisted that the neutral government is bound to seize and detain sucli vessels whenever they may enter its ports; that this is a duty which it owes to the other belligerent, and by the non- performance of which it becomes liable to a demand for compensation. In the view of the United States this also is a general rule of inter- national law, which existed before the treaty of Washington, binding on all neutral powers, and is expressly affirmed, also, as between the United States and Great Britain, by the first of the three rules. It is stated as follows : A neutral government is bound, first, to use due diligence to prevent the fitting out, arming, or- equipping, within its jurisdiction, of any vessel which it has reasonablfo groiind to believe. is intended to cruise" or to carry on war against a power with which it is at peace ; and also to use like diligence to prevent the departure from its jurisdic- tion of any vessel intended to cruise or .carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. The United States invite the particular attention of the tribunal to the continuing charac- ter of the second clause Of this rule. The violation of the first clause takes place once for all when the offending vessel is fitted out, armed, or equipped within the jurisdiction of the neutral ; but the offense under the second clause may be committed as often as a vessel, which has at any time been specially adapted, "in whole or in part, to warlike use, within the jurisdiction of the neutral, enters and departs flT] unmolested from one of its ports. *Every time that the Alabama, or the Georgia, or the Florida, or the Shenandoah came within Britisk jurisdiction, and was • suffeted to depart, there was a renewed offense against the sovereignty of Great Brit- ain and a renewed liability to the United States.' The words -'specially adapted for warlike use" include, according to the United States, any adaptation whatever "for the hostile use of a belligerent, whether that adaptation began when the keel was laid to a vessel intended for such hostile use, or whether it was made in later stages of construction, or in fitting out, or in furnishing, or in equipping, or iu arming, or in auy other way."^ In every case in which anything whatever had been done, .however slight, to fit the vessel for warlike use, (for the language of the United States is framed with studied care to embrace every jjossible act of adaptation,) the obligation, with its attendant liability, attaches on the neutral government. .This duty seems to have, according to the United States, no limit of tiine. It applies to vessels which have "at any time " received any partial adaptation for warlike use in the building-yards, docks, or waters of tlie neutral country; it applies to public ships of war commissioned by a belligerent power ; and it applies to them indifferently whetlier the act or acts of adaptation took place after they were commissioned or before it, and before they came into the possession of the commissioning power. Literally, it might even be taken to appl.y to cases in which the adaptation had taken place for purposes totally unconnected with the particular war or with either of the belligerents. Had the Uriiterl States intended to limit in any way their peculiar interpretation of the claiisfe, tbey might have been expected to state the limitation. But it is clear that they had no such intention, for they have been careful, to employ the widest and -most comprehensive language they could possi- bly command. It can hardly be necessary to sa.y that this pretended obligation, whereby a neutral government would be bound to seize by force any piiblic armed ship which might enter its ports, and of which there might be reason to believe that she had at any time before received some partial adaptation for war within the jurisdiction of the neutral, is entirely unknown to the law, unsupported by practice, and in direct ' Case of the United States, p. 163. 2 Ibid., p. 162. 224 TREATY, OF .WASHINGTON. iconflici, with the principles which havejhitjierto governed the admissifp of public ships of war into the ports of friendly nations. , . i,^, This would alone be sufiicient to condemn the interpretation of .the' .second rule suggested by the United, States,;eveii if it could, with any plausibility, be represented as the natural meaning of the words em- ployed. But it is not their natural meaning. ISTo one who desiredto lay down such a principle would clothe it in such language. It is clear that these words point to, a departure following the special adaptation, while the hostile purpose still rests in intention, and the vessel may still, by due diligence, be prevented from Quitting the neutral territory to carry that purpose into execution ; and that they cotild not, without violence, be applied to a case in which the ship, having succeeded in eifecting her departure and Anally quitted the neutral jurisdiction, has, subsequently re-entered it at an indefinite distance of time; when, in- stead of being merely "intended for warlike use," she is knowii to.be actually engaged in hostile operations, and when her original character has been exchanged for that of a public ship of war, recognized as such in the ports of other neutral states, and exempt as such from all local jurisdiction. Unless a violation of neutrality had been established in due course of law against such a vessel while properly subject to the neutral jurisdiction, the question of fact whether such a violation had taken place could not, by any form of proceeding, be investigated be- tween the neutral power and the belligerent whose flag she bore. Even if the proof of the facts, in foro covipetehle, were as easy as it has been generally found difficult, the belligerent power would justly deny the right of the neutral to exercise jurisdiction over a vessel forming part of its public maritime force, for the purpose of any such inquiry. And to detain a public ship of war in a neutral port for acts done before, she had obtained that character, without any previous notice that she was not at liberty to come in upon the usual terms, would be in itself*an act Of war, and a plain violation of well-settled rules of international comity. Her Britannic Majesty's government observes with sincere regret that, as in other particulars, so more especially in this, the Government of the United States, instead of accepting in a fair and reasonable sense -rules which the two powers have engaged to observe toward one another and to recommend for adoption to other states, seems on this occasion to have considered how they might be turned to the greatest advantage in the present controversy, and with that view to have strained the con- struction of them to the very utmost. The undue extension which it is proposed to give to the first rule does not accord with its plain [18] and natural meaning, was never contennplated *.by the govern- ment of Her Britannic Majesty, and is altogether rejected by Great Britain. The British government concurs with the Government of the United States in holding that a vessel which has becotpe liable to arrest and seizure within neutral jurisdiction, by reason of a violation of neutrality, cannot relieve itself from that liability by merely removing to another place within the same jurisdiction, and 'that the duty of the neu'triil government to seize and detain, where such a duty exiists, would not be affected, though the execution of it mighit without any want of due diligence be eujbarrassed or prevented by the mere fact of such* re- moval. The orders issued for the seizure of the Alabama under the powers of the foreign-enlistment act wonld have been executed at Queenstown or Nassau, had she gone from Liverpool to either ot those places, exactly as they would have been executed at Liverpool if they COUNTER CASE OF GREAT BRITAIN. 225 had arrived in time. But the Alabama, when she touched for the first time at a port of a British colony, had for more than six months been isbmmissioned and in active service ' as a cruiser of the Confederate States ; had, as such, fought a successful action with a United States war steamer; and, as such, has been received at the French island of Martinique, a^ she afterward was at Fernando de Noronha, Bahia,' and Oherbourg. And, in matters relating to the war, it was the duty of Great Britain, as it was the duty of other neutral powers, to treat the Alabama in exactly the same manner as, under corresponding circum- stances, they would have treated a public ship armed and commissioned by a recognized sovereign state. Her Majesty's Government, in its Case presented to the tribunal of arbitration, has stated the following propositions -.^ Maritime war being carried on by hostilities on the high seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other. Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign state, commissions issued by such belligerent are recognized as acts emanating, not indeed from a sovereign government, but from a peison or persons exercising de facto, in relation to the war, the powers of a sovereign government. Public ships of war in the service of a belligerent, entering the ports or waters of a neutral, are, by the practice of nations, exempt from the jurisdiction of the neutral power. To withdraw or refuse to recognize this exemption without previous notice, or without such notice to exert, or attempt to ' exert, j urisdictioa over any such vessel, would he a violation of a common understanding, which all nations are bound by good faith to respect. A vessel becomes a public ship of war by being armed and commissioned, that is to say, formally invested by order or under the authority of a government with the character of a ship employed in its" naval service and forming part of its marine for purposes of war. There are no general rules which prescribe how, where, or in what Jbrm the commissioning must be effected, so as to impress on the vessel the character of a public ship of war. What is essential is, that the appointment of a designated ofBeer to the charge and command of a ship liljewise designated be made by the gov- erumeat or the proper department of it, or under authority delegated by the govern- fnent or depai'tment, and that the charge and command of the ship be taken by the officer so appointed. Customarily, a ship is held to be commissioned when a commis- sioned offl-cer appointed to her has gone on board of her and hoisted the colors appro- priated to the military marine. A neutral power .may indeed refuse to admit into its own ports or waters as a public ship of war any belligerent vessel not commissioned in a specified form or manner, as it may impose on such admission any other conditions at its pleasure, provided the refusal be applied to both, belligerents indifferently ; but this should not be done without reasonable notice. The act of commissioning, by which a ship is invested with the character of a public ship of war, is, for that purpose, valid and conclusive, notwithstanding that the ship may have been at the time registered in a foreign 'country as a ship of that country, or may have been liable to process at the suit of a private claimant or to arrest or forfeituire under the law of a foreign state. The commissioning power, by commission- ing her, incorporates her into its naval force ; and by the same act which withdraws her, fromthe operation of ordinary legal process assumes the responsibility for all ex- isting claims which could otherwise have been enforced against her. {19] . *The principle on which these rules repose is thus explained by Ortolan: S'il s'agit de navires de guerre, la coutume Internationale est oonstante : ces navires restent r^gis uniquement par la souverainet^ de leurs pays; les lois, les autorit^s, et les juridiotions de I'^tat dans les eaux duquelils sont mouillfeleur resteut ^trangferes ; ilsn'ont avec cet 6tat que des relations inlernationales par la voie des fouctionnaire's de ]a,10calit6 oomp^tents pour de pareilles relations. Cette coutume est-elle fond(5e en raison 1. Peut-elle 6tre d^fendne mSme an point de vne th^orique ? Ou bien m6rite-t-elle le bUme que quelques esprits paraissent vouloir Jeter sur elle, ou les resfrictions que d'autres s'eiibrcent d'y apporter ? ■ I British Case, pp. 4, 23, 24. .,^ 13 A — II 226 TREATY OF WASHINGTON. Le navire de guerre portant en son Sein une partie de la puissance publique de I'^tat auquel il appartient, un corps organist de fonctiounaires et d'agents de cette puissance dans I'ordre administratif et daus I'ordre militaire, soumettre ce navire et le corps organist qu'il porte aux lois et aux autoritds du pays dans les eaux duquelil entre, ce serait vraiment soumettre I'une de ces puissances a I'autre; ce serait vouloir rendre impossibles les relations maritiraes d'une nation k I'autre par batiments de r^tat. II laut on renonoer h ces relations ou les admettre avec les conditions indi- epensables pour maintenir ^ chaque Stat souverain son iud^pendance. ., L'^tat propri^taire du port ou de la rade peut, sans doute, ^ l'6gard des batiments de la mer territoriale, d'employer h leur 6gard les moyens de stlret6 que leur Toisinage peut rendre niScessaires, sauf k r^poudre, envers I'^tat auquel ces vaisseaux appartieA- nent, de toutes ces mesures qui pourront etre, suivaut les ^venements qui les auront motiv^es ou la mauifere dont elles auront 6tiS ex^cut^es, des actes de defense ou de precaution legitime, on des actiSs de m^flance, ou des offenses graves, ou mSme des causes de guerre ; mais taut qu'il les rep oit, il doit respecter en eux la sonverainet6 (Strangfere dont ils sont une 6manatiou ; il ne peut avoir, par consequent, la pretention^ de riSgir les personnes qui se trouvent et les faits qui se passent k leur bord, ni de faire •Bur ce bord acte de puissance et de souverainet6. C'est ainsi que le conflit se trouve sagement r^gie et que I'independauce de chaqu e etat souverain est maintenue. Les consequences de cette pratique, que M. Piuheiro-Ferreira relfeve comme les plus denuees de raison, savoir, celles relatives k I'asile que les malfaiteurs du pays trouve- raient a bord, appartiennent k une matifere qui revieudra plus loiu, et dont nous traite- rons en detail. Mais nous ponvons, des k present, faire observer que jamais le com- mandant d'un navire de guerre n'appliquera le benefice de I'exterritoriallte de son navire en faveur des malfaiteurs du pays, pas plus que I'ambasSadeur I'exterritorialite de son hOtel et de ses equipages ; et que, dans le cas oti certains criminels seraient par- venus k se refugier k son bord, il existe des rfegles Internationales relativement k leur expulsion du navire ou k leur extradition. En un mot, I'inviolabilite qui est due en tons lieux aux navires de guerre comme k une forteresse flottante de I'etat qui les a armes, renfermant un corps organise de la puissance publique de cet etat, cette inviolabilite n'entralne pas I'irresponsabilite des offioiers qui commandent ces navires. Mais tous les actes qui s'y refferent, soit de la part de I'etat dans les eaux duquel sont mouilies les navires a I'egard de ces navires, soit reciproquement, tous ces actes sont actes de relations Internationales, et les conse- quences ou reparations, s'il y a lieu, doivent en gtrepoursuivies par voie diplomatique, Cette inviolabilite ne diminue en rien, du reste, le droit qu'a toute nation, si le na- vire de guerre vient k commettre centre elle des actes d'aggression, d'hostilite, ou de violence quelconques, de prendre immediatement toutes les mesures et d'employer tous les moyens necessaires k une legitime defense. Elle n'empfeche pas nou plus que les navires de guerre soient soumis ^ I'observatiou des rfeglements. sanitaires du pays ou ils veulent aborder. Les eijreuves imposes par ces rfeglements sont des conditions mises k I'admission des navires dans les eaux de ce pays; elles ne sont nullement en contradiction avec le droit d'exterritorialite dont jouissent les bfttiments de guerre entres dans ces eaux. II resulte de tout ce qui precfede que, loin de desapprouver, au point de vue de la pure raison, la coutume du droit international positif k I'egard des navires de gue'rre, il faut teuir cette coutume pour bonne et pour digue d'6tre maintenue en theorie comme en pratique. '■ The principle laid down in the preceding extract is clear, and the consequences which flow from it are equally clear. A vessel commis- sioned as a public ship of war, entering a foreign port, is a portion of the naval force of the government by which she is commissioned, com- manded by its officers, and displaying the ensigns of its authority. Any act of force directed against her (unless to prevent or repel aggres- sion, or compel her to depart after having been required to do so by competent authority) would be directed against her government, and would at the same time, if done without previous warning, be an infrac- tion of a recognized understanding, on the faith of which she entered, and on the observance of which she had, a right to rely. If, while in neutral waters, she commits any violation of neutrality or other offense against the neutral, force may undoubtedly be employed in any way ' Rfegles internationales etdiplomatie de la mer (4th edition,) vol. i, p. 190. DOUNTEE CASE OP GEEAT BEITAIN. 227 •which may be necessary iu order to prevent or arrest the unlawful act and to compel her departure. But redress ought not to be sought against the ship herself ; it should be sought, if needful, against her government. A fortiori, this is true if the offense were committed before she arrived at the neutral port. Thus, of the violations of neu- trality committed during the war, the grossest and most flagrant [•20] by far was that *perpetrated by the Wachusett in the harbor of Bahia. The Brazilian authorities woiald have been amply justi- fied in firing on that vessel while engaged in the act, and sinking her if necessary. If she had afterward presented herself in a Brazilian port, they would, doubtless, have refused her admission ; but they would have rightly abstained, even on such provocation, from seizing and detaining her. A multo fortiori, the same proposition holds good if the act complained of were done before the offending ship came into the possession of the commissioning government, or before she was incor- porated into its naval service. These principles are recognized by publicists and sanctioned by usage. There is not a maritime power in the world which would not reseut any violation of them ; and it would be the duty of any naval officer to resist such a violation, unless it were supported by manifestly superior force. They do not extend to prizes brought into neutral ports by the belligerent vessel, if captured within the waters of the neutral, or by a vessel unlawfully armed within her jurisdiction and during the cruise immediately following such armament. These the neutral may restore, and it may be his duty to do so, on the application of the orig- inal owners or their government. As to the nature of the proof which may be required that a vessel claiming the character of a public ship of war is really such, M. Ortolan observes : Les preuVes de la nationalite et du caractfere d'un 'bAtiment de guerre sont dans le pavilion et dans la flamme qu'il fait battre hi sa corue et au haut de ses m^ts ; dans I'attestation de son commandant, donnfe, au besoin, sur sa parole d'honn.eur ; dans la commission de ce commandant, et dans les ordres qu'il a regus de son souyerain. Le pavilion et la flamme sont indices visibles ; mals, dans certains cas, on n'est tenii d'yajonter foi que lorsqu'ils ont 6t6 appuy^s d'un coup de canon. L'attestation du commandant pent 6tre exigible : les autres prenves doivent se prfeumer ; et solt en pleine mer soit ailleurs, aucune puissance ^trangfere n'a le droit d'en obteulr I'exhibi- tion. ■He refers also to the answer returned by the government of thel^eth- erlands to that of the United States respecting the reception of the Sumter at Cura§oa, and to the opinion pronounced, in 1782, by the gov- ernment of Eussia in the matter of the Danish corvette St. John, seized in Spanish waters, notwithstanding the display of her pendant and the declaration of her commanding officer : , La Eussie fut plus explicite. Elle jugea dans sa r(Sponse : " 1. Qu'il est conforme auxprincipes du droit des gens qu'un b^timent autoris^, selon les usages de la cour on de la. nation a laquelle il appartlent, ^ porter pavilion militaire, doit 6tr6 envisage d6s lors comma un b^timent arm^ en guerre. " 2. Que ni la forme de ce batiment, ni sa destination ant^rieure, nl le nombre d'indi- vidns qui en composent I'lSquipage, ne peuvent plus altiSrer en lui oette qualitiS inh^- rente, pourvn que I'officier commandant soit de marine militaire." II n'existe, que nous sacbions, aucun trait(S, ni aucvm acte public dans lesquels ce principe proclamS par la Eussie ait ^t^ sanctioun^ depuis ; mais il I'est incontestable m ent' par la coutume g6n^,rale.' The established practice of maritime nations, including the United ' Efegles Internationales et diplomatic de la mer, (4tli edition,) vol. i, pp. 181, 185. 228 TREATY OP WASHINGTON. States and Great Britain, accords with the foregoing statements of Ortolan.! [21] AEGTJMENT OP THE UNITED STATES. — "WHAT IS DUE DILI- GENCE'?" Passing from the question, what classes of acts a neutral power is whM i« du» diii hound to use due diligence to prevent, to the further qaes- gence? ^jQ^^ what is due diligence. Her Majesty's government finds that " these words are not regarded by the United States as changing, in any respect, the obligations of a neutral regarding the matters re- ferred to iu the rules, as those obligations were imposed by the princi- ples of international law existing before the conclusion of the Treaty."* Her Majesty's government concurs with that of the United States in holding that the words "due diligence" introduced no new or additional obligation. They exact from the neutral, in the discharge of the duties imposed on Lim, that measure of care, and no other, which is required by the ordinary principles of international jurisprudence, and the absence of which constitutes negligence. Her Majesty's government will not follow the Government of the United States through the observations which it has presented to the arbitrators on the nature and degrees of negligence, but will notice only the definition which, at the close of those observations, it has attempted to supply :. The United States understand that the diligence which is called for by the rules of the Treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject, and to the dignity and strength of the power which is to exercise it ; a diligence which shall, by the use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated; a diligence that shall iu like manner deter designing men from committing acts of war upon the soil of the neutral against its will, and thuS possibly dragging it into a war which it would avoid; a diligence which prompts the ' The general immunity of public ships of war from any foreign jurisdiction, civil or criminal, is thus stated in a work of acknowledged authority, (Kent's Commentaries on American Law, vol. i, p. 155 :) "This right of search is confiiied to private merchant- vessels, and does not apply to public ships of war. Their immunity from the exercise of any civil or criminal jurisdiction but that of the sovereign power to which they belong is uniformly asserted, claimed, and conoeded. A contrary doctrine is not to be found in any jurist or writer on the law of nations, or admitted in any treaty, and every act to the contrary has been promptly met and condemned." So Wheaton,- Ele- ments of International Law, p. 151, ed. 1836: "If there be no express prohibition, the ports of a friendly state are considered as open to the public armed and commissioned ships belonging to another nation with whom that state is at peace. Such ships are exempt from the jurisdiction of the local tribunals and authorities, whether they enter the ports under the license implied from the absence of any prohibition, or under an express permission stipulated by treaty." The principle of the rule was laid down by Chief Justice Marshall, delivering the judgment of the Supreme Court of the United States, iu the case of the Exchange, a vessel belonging to an American citizen, which had been seized in a Spanish port by the French government and converted into a pub- lic ship of war, and which her original owner afterward attempted to reclaim on her arrival at Philadelphia. After observing that private persons entering a foreign coun- try are not exempt from the local jurisdiction, the Chief Justice proceeded : " But the situation of a public ship is in many respects different. She constitutes a part Of the military force of her nation, acts under the immediate and direct command of her sov- ereign, is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without seriously affecting his power and dignity. The implied license, therefore, under which such vessel enters a friendly port may rea- sonably be construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rites of hospitality." (Cranch's Reports, vol. vii, p. 135.) The rule was also affirmed by Mr. Justice Story, one of the greatest jurists who ever adorned the United States, in the case of the Santissima Trinidad. It is assumed iu Mr. Cushiug's opinion referred to above, (p. 16,) in the case of the Sitka. ^Case of the United States, p. 21. COUNTER CASE OP GREAT BRITAIN. 229 neutral to the most energetic measures to discover any purpose of doing the acts for- bidden by its good faith as a ueutral, and imposes upon it the obligation, when it re- ceives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it.^ Her Majesty's government lias been unable to collect from this defi- nition the information which it is doubtless intended to convey. It may readily be conceded that the care exerted by a government to prevent violations of its neutrality should bear some proportion to the probable consequences of such offenses. It may be conceded also that the re- sponsibility incurred by failing to prevent an offense must materially depend on the power which the government possessed of preventing it. So far as this, the British government concurs with the Government of the United States. But Her Majesty's government cannot admit that the measure of diligence due from neutral powers ought to be propor- tioned in any way to their relative degrees of dignity ; it knows of no distinction between more dignified and less dignified powers; it regards all! sovereign states as enjoying equal rights and equally subject to all ©Rdinary international obligations; and it is firmly persuaded that there is no state in Europe or America which would be willing to claim or accept any immunity in this respect on, the ground of its inferiority to others in extent, military force, or population. In truth, the arbitrators will have clearly perceived, from this statement already presented to them on the part of Great Britain, that in a country which, with free institutions, possesses a large commercial marine and a very extensive ship-building trade, the difficulty of preventing enterprises of this na- ture is, instead of being less, far greater than in countries which are not so populous and where these conditions are not united; and just allowance ought to be'madefor this diflSculty. The assertion that due diligence means a diligence which shall prevent the acts in question, and shall deter men from committing them, if taken literally, can only signify that no government can be held to have done its duty which has not been completely successful. Of all the powers in the world, such a test would most severely condemn the Government of the United States. If not taken literally, it can contribute nothing to a serious discussion. It has been shown, by ample evidence, in the case presented on the part of Great Britain, that the measj^res adopted by the British government did prevent and deter men from enterprises which would have violated or imperiled her neutrality ; all that the United States have to com- plain of is, that these measures proved ineffectual to prevent or deter, in a very small number of cases, in which the agents contrived [22] to escape observation, *or the difflculty of obtaining evidence was gTeat. That due diligence requires a government to use all the means in its power, is a proposition true in one sense, false in another : true, if it means that the government is bound to exert hon- estly and with reasonable care and activity the means at its disposal; false, impracticable, and absurd, if it means that a liability arises when- ever it is possible to show that an hour has been lost which might have been gained, or an accidental delay incurred which might, by the ut- most foresight, have been prevented ; that an expedient which might have succeeded has not been tried ; that means of obtaining informa- tion which are deemed unworthy or improper have not been resorted to; or that the exertions of an officer or servant of government have .not been taxed to the utmost limit of his physical capacity. Nor can we fail to observe that, in proportion as we extend the duty of prevention incumbent on neutral governments, from hostile enterprises which are open and flagrant to acts of a more doubtful character which 1 Case of the United States, p. 158. 230 TEEATy OF WASHINGTON. border ou the line betwixt the lawful and the unlawful, it becomes more and more dififlcult to exact from the neutral, in the performance of that duty, peculiar and extraordinary vigilance and activity. The duty of preventing the open assembling -within neutral territory of an. armed hostile expedition against a neighboring country is plain and obvious, and requires only a prompt exercise of adequate force. But it is other- wise when we come to acts of a different class, the criminality of which depends on a latent intention ; such, for example, as the mere procuring for belligerent purposes from the yards of a neutral ship-builder, whose ordinary business it is to build ships of all kinds for customers of all nations, a vessel with some special adaptation for war. ' There is nothing in the relation of a neutral to a belligerent to cast on the former the duty of exercising, within his own territory, a constant and minute espionage over ordinary transactions of commerce for the protection of the latter. This relation, always onerous to the neutral, is, at the same time, it must be remembered, purely involuntary on his part. It is forced oh him by the quarrels of his neighbors, in which he has no con- cern, or by their internal discords, when those discords break out into civil war. Her Majesty's government has not attempted a task which has baf- fled, as it believes, the ingenuity of jurists of all times and countries-r- that of defining with any approach to precision, apart from the circum- stances of any particular case, what shall be deemed due diligence or reasonable care. In its Case, already presented to the Tribunal, it has stated some general propositions, which it believes to be consonant with justice, and supported by such analogies as may be fairly drawn from the private law of Europe and America.^ It leaves it, however, to the arbitrators, who know what arfe the ordinary powers of governments, what the difficulties they labor under, and' what may reasonably and wisely be expected from them, to determine, upon a careful considera- tion of the facts, and on the same principles by which the States to which they themselves belong would be willing to be judged, whether on the part of Great Britain there has or has not been that want of due care or diligence which makes reparation a duty.'' On the question, in what cases and within what limits compensation in money may reasonably be deemed due from a neutral nation for in- juries occasioned by such a want of care, Her Majesty's government will here only say, that the position of Great Britain appears to be mis- apprehended by the United States, and that the two decisions of an American court cited in the case have uo bearing upon it.^ Such a question, it is evident, is not within the cognizance of any municipal tribunal, however respectable; and no municipal tribunal has attempted to pronounce judgment on it. The Supreme Court of the United States, in the cases cited, decided only that of two armed vessels one had been unlawfully fitted out, while the other had received an unlawful aug- mentation of force, within the jurisdiction of the United States, and that prizes taken by each and brought within the jurisdiction of tbe United States ought to be restored. The arbitrators will now be in a situation to judge what value to at- tribute to the assertion, " that the principles for which the United States ' Case of Great Britain, p. 24, propositions 9, 10, 11 ; and pp. 166, 167. _ '"Du reste," says a distinguished French jurist, treating of this subject in connec- tion with private law, " du reste, soit qu'il s'aglsse d'uue obligation de donn'eir «u de faire, la protestation des fautes est, dans la pratique, &, peilue une question de droit. Le point de fait y est toiijours dominant, quand il n'y est pas tout." — Larombifere, Thdmie et2iratique des ohligaiions, vol. i, -p. 417'. 5 The Santissima Trinidad and the Gran Para. Case of the United States, p. 206. COUNTEK CASE OF GEEA.T BRITAIN 231 contend have been recognized by the statesmen, the jurists, the publi- cists, and the legislators of Great fJritain; that they have the approba- tion of the most eminent authorities upon the continent of Europe; and that they have been regarded by the other powers of Europe in their dealing with each other."^ The truth is, that the alleged princi- [23] pies from which Her Majesty's govern*ment has declared its dissent were never before seriously asserted, and never admitted or recognized by any power in Europe or America; that they have the support of no publicist of authority; that they are unknown in Great Britain ; and were, up to the. time when these claims were brought for- ward, equally unknown in the United States.^ ' Case of the United States, p. 202. 'The following extract froiii Reddie's "Researches in Maritime and International Law," (vol. ii, p. 210,) is apposite to the general question how far neutral governments are bound to interfere actively for the purpose of restraining their subjects from acts falling within the prohibitions of international law. It is an abstract of the views expressed in the " Considerations sur les Droits E^ciproques des Puissances Bellig^r- antes et des Puissances Neutres sur Mer," of Tetens, a work which Mr. Reddie describes as "the most free from national bias, and most impartial exposition of the general principles of maritime international law which has appeared in recent times : " " It is a wise foresight for neutral governments to obviate, during war, as far as pos- sible, all illegal conduct ou the part of their Subjects, for the double advantage of pre- serving them from risks, and of preventing the suspicions of belligerents against the traders who sail under neutral flags. The conduct exhibited! by several individuals in a neutral nation produces naturally a presumption for or against their fellow-coun- trymen, which seldom tails to have consequences favorable or unfavorable to the ves- sels of that nation which the belligerents encounter. There is also a political reason ■for neutral governments watching their subjects iu this respect. They cannot, indeed, manifest more authentically their perfect neutrality than by clear and precise ordi- nances for their commerce and navigation during war, and by a rigorous police, severely directed against those who contravene them. The more they exert themselves to re- strain fraud, the more they are in a state to protect their loyal subjects, and to inter- pose with success iu the cases of j ust claims made by the latter against the cruisers of the belligerent powers. "What neutrals, however, may do in this respect does not arise from any right which imposes on them the obligation of maintaining a more special surveillance over their subjects during war than they are in the habit of doing during peace ; nor to ex- ercise a more extensive inspection over the legality of their conduct toward belliger- ents than that which is prescribed by law. In even allowing them to act ejitirely as , they choose, they in no manner infringe the rights of tbe belligerents, provided they do not pretend otherwise to protect their contraventions. But such iudifference may inspire belligerents with unfavorable opinions, which it may be as well to prevent, especially if it be preponderating powers who are at war. , "Prom neutral governments not being under an obligation to obviate the abuses of their subjects, it follows that belligerents, whatever condescension they may have to expect from them for that purpose, .cannot reasonably require them to extend their measures beyond what is in practice in these same neutral countries for preventing frauds being committed on their own customs, and for checking the other deceitful contrivances for evading payment of the revenues of the state. The maximum of pre- caution, in this case, is to maintain and enforce the observance of neutrality in vessels and cargoes with the same diligence and exactness as are exercised in inquiries and ' other proceedings relative to taxes, or imposts and customs. He who does as much to prevent a wrong meditated against another as he does for his own protection, satisfies ■every just and reasonable expectation on the part of that other. Perhaps, however, more might be done, if it were wished, completely to attain the object. In time of war special instructions might be ordered; tribunals of inquiry might be established against the frauds of merchants and ship-owners, and more rigor might be shown in 'the punishment of their delinquencies. But this cannot be demanded on the one side, ' and, on the other, it might be diificult to grant it, because there might result from it consequences inconsistent with the general spirit of the prohibitory laws of the state.. At least, this care must be left to the neutral governments, to whom alone it belongs to judge what it may be proper for them to do with reference to the circumstances of' the war." [24J *PART III, PRECEDENTS APPEALED TO BY THE UNITED STATES. In aid of its view of neutral duties and liabilities, the goveramgnt of the United States has appealed to several precedents re- pe^ierto°by the corded lu history. These are — ' un.iej states. ^ ^ correspondeuce which passed between the govern- ments of Spain and Sweden, iu 1825, relative to a sale of certain Swedish vessels of war, which the Spanish government suspected of having been bought for the service of Mexico. 2. The correspondence between the British minister and the Govern- ment of the Unite(J States, in 1793, respecting the depredations prac- ticed on British commerce by privateers under the French flag, fitted out in American ports; the measures adopted in .consequence by the Government of the United States ; and the treaty of 19th November, 1794. 3. The complaints and claims urged by Spain and Portugal against the United States, on account of like depredations on the subjects and shipping of those two powers, by privateers fitted out within the United States; and the subsequent treaty with Spain of 22d February, 1819. Some of these transactions have been so insufQciently presented in the Case of the United States that it becomes necessary to recall them, so far as may be necessary to set the facts in their true light. It will then be seen that, far from lending any support to the claims of the United States, they, on the contrary, militate against those claims. It will be necessary, also, since the Government of the United States has invoked against Great Britain the history of American neutrality,, to make some additions to a narrative which would otherwise be very imperfect. 1. Case of the Swedish ships.' This affair calls for scarcely any remark on the part of Great Britain. cweof the swed- It was a Sale, by a neutral government, of a ship of the line i.h»hip., 1825. jjQ^ ^.^Q frigates ; and there was reason to suspect that the trading firm who had become the nominal purchasers had bought them for the service of the republic of Mexico, then at war with Spain. The contract of sale contained a clause, enabling either party to rescind it on payment of a stipulated sum. The transaction was uncompleted, and still within the power of the Swedish government. The govern- ment of Spain remonstrated warmly, and induced the ministers of other powers resident at the Swedish court to support its representations. 1 The narrative introduced into the Case of the United States is taken from Cussy's, Phases et Causes C^Ubres du Droit Maritime, vol. ii, p. 402. There is a hotter account, containing the official correspondence, (which is wanting inCnssy,) in Martens's Causes. C<516bre8 du Droit des Gens, vol. v, p. 229, ed. 1861. COUNTER CASE OF GREAT BRITAIN. 233 Hhe government of Sweden insisted on its right to complete the sale.. At the end of four months, after much correspondence, the contract was. rescinded ou the request of the purchasers, Avho alleged that the vessels had been detained till too late in the year by reason of the recall of cer- tain officers and seamen of the Swedish navy, who had previously obtained leave to enter the merchant service, and were to be employed on board of them. The stipulated payment was excused ; and the Swedish gov- ernmaent undertook to re-imburse the purchasers for money laid out on the repair and equipment of the ships. That the government of Sweden was right in not completing the sal^, after circumstances of suspicion had been brought to its knowledge by Spain, there can be no doubt. It has always been conceded that a sale by a neutral government to a belligerent, directly or indirectly, of arms or munitions of war, or ships of war, stands on ground quite difterent from the mere forbearance or omission to prohibit such transactions on the part of private individuals who are its subjects. In the latter case no duty is violated. But a government which sells or furnishes arms, gives or lends money, to a belligerent, becomes to that extent a partici- . pant in the war.^ [25] * In the case of the Anglo- Chinese flotilla, which has been already stated to the arbitrators, it will have been seen that, under some- what similar circumstances, Her Britannic Majesty's government did not hesitate to do far more than the government of Sweden. The differences are that the vessels of the flotilla had not been the property of the British government, and had only been officered and manned by its permission ; that no circumstances of suspicion had been suggested to the govern- ment, but merely an apprehended possibility ; that Great Britain acted immediately, without any correspondence or delay ; and that the sacri- fice she undertook to make amounted, not, as in the Swedish case, to about 60,000 francs, but to above 2,500,000.^ Great Britain has certainly nothing to fear from this comparison. The purchase by Her Majesty's government, at the price of £220,000, of the two iron-clads seized in 1863, has been mentioned in the British Case, and it has been stated (as the fact is) that in agreeing to this pur- chase the government was mainly actuated by anxiety to prevent by any means in its power, however costly, vessels of so formidable a char- acter, constructed in a British port, from passing, directly or indirectly,, into the hands of a belligerent.^ The case of the old dispatch-boat Victor, sold out of Her Majesty's navy in 1863, will be hereafter referred to.* There were in that case no cir- cumstances to excite suspicion, and no representation was made by the minister of the dnited States to Her Majesty's government. When it was discovered, however, that this vessel had passed into the hands of a bel- ligerent, and that endeavors had been made to fit her out as a cruiser, orders were immediately given that no more ships should be sold out of the navy daring the continuance of the war. This decision was followed in the case of two vessels, (the Eeynard and Alacrity,) for which an ad- vantageous offer was made to the admiralty in December, 1863, and which it was desirable to dispose of. " It would be better," Earl Eussell wrote, "at the present time not to sell any vessels to private firms, as it . - \8ee Heffter, oite.d l)elow, p. 145. This distinction is recognized by all writers. There is reason to believe, however, from facts which have become notorious, that it was over- looked bv the American Government during the late war between France and Germany. ^ Case of Great Britain, p. 47. 'Ibid., p. 44. ■> Infra, p. 122. 234 TREATY OF WASHINGTON. is impossible to obtain any sufficient assurance in regard to what might be done with vessels when sold out of the navy."^ 2. Violations of Ameeioan neutrality in 1793 and 1794. - In the year 1793 the neutrality of the United States was infringed, not only by captures, within their territorial waters, of British flLr7ci.°i'",;?,';?r,ji'ty vessels by hostile armed ships, but by repeated and success- " '™'°'' '™' ful atteihpts to fit out privateers for cruising, under the French flag, against Great Britain, then at peace with the United States and at war with France. It must be here observed that the example of this mode of carrying on maritime war had been set by the United States themselves. The agents who were sent to France in 1776 for the purpose of gaining for the United Colonies the aid and support of that power in their struggle for inde- pendence, succeeded in procuring and arming many privateers, which they dispatched from French ports, with orders to cruise against Greait Britain, and from which British commerce suffered severely. It was natural to expect that when, in February, 1793, the French Eepuh- lic declared war against Great Britain, France in her turn should try to imitate and profit by that example. On the 8th of April, 1793, a French «nvoy arrived at Charleston ; he immediately proceeded to fit out priva- teers, and four were fitted out, armed, manned, and commissioned within American jurisdiction befoae the end of the month. These acts were open and undisguised. Houses of rendezvous were opened at Charleston for collecting crews, tTje vessels were suffered to pass the fort under a written permission from the governor of South Carolina, and there was reasonable ground to believe that, though nominally owned by French- men, they were really the property of American citizens. These vessels afterward brought in prizes, which were condemned by pretended prize courts, held within the jurisdiction of the United States. Applying to the United States the stringent rule which that power now seeks to apply to Great Britain, the British government might undoubt- edly have insisted that these were violations of neutrality which the American Government was bound to prevent ; that no imperfections in its municipal law or executive organization could be pleaded in its defense; and that the United States were liable for all the injuries which the failure to prevent them might occasion to Great Britain. The British minister, however, limited himself to the request that the American Government would "pursue such measures as to its wisdom may appear the best calculated for repressing such practices in future, and for restoring to their rightful owners any captures which these particular privateers may attempt to bring into the ports of the United StatesJ'^ [26] * In the month of May, one of the privateers unlawfully fitted out at Charleston, (the Citoyen Gen6t,) came into the port of Phil- adelphia, which was the seat of the Government of the United States, bringing a prize. The Citoyen Genet was not seized or detained by the Government of the United States. After some correspondence with the French envoy, Mr. Jefferson, then Secretary of State, informed him on the 5th June, 1793, that, in the opinion of the President, "the arming and equipping vessels in the 1 Appendix to Britisli Case, vol. t, p. 201. 2 Ibid., p. 241. COUNTER CASE OF GREAT BRITAIN. 235 ports of the United States to cruise against nations with which they ■were at peace was incompatible with the territorial sovereignty of the United States ; that it made them instrumental to the annoyance of those nations, and thereby tended to compromise their peace ; and that he thought it necessary, as an evidence of good faith to them, as well as a proper reparation to the sovereignty of the country, that the armed vessels of this description should" — not be detained in, but — "depart from the ports of the United States." ^ The British minister was on the same day informed that "the moment it was known, the most energetic orders Avere sent to every State and port in the Union, to prevent a repetition of the accident," and that per- sons accused of being participators in the act had been committed for trial. The restitution of the prizes was refused : The principal agents in this transaction were French citizens. Being within the United States at the moment a war broke out between their own and another country, they- determined to go into its defense; they purchase, arm, and equip a vessel with tlieir own money, man it themselves, receive a regular commission from their nation, depart out of the United States, and then commence hostilities by capturing a vessel. If imder these circumstances the commission of the captors was valid, the property, according to the laws of war, was by the capture transferred to them, and it would be an aggression on their nation for the United States to rescue it from them, whether on the high seas or on coming into their ports. If the commission was not valid, and con- sequently the property not transferred by the laws of war to the captors, then the case would have been cognizable in oxir courts of admiralty, and the owners might have gone thibher for redress. So that on neither supposition would the executive be justi- liahle in interposing.^ The American Government thus refused to take any measures even for the restitution of prizes actually brought into their iiorts by priva- teers equipped and commissioned therein. The acts complained of, it was added, could not be imputed to the Crovernment, which could not have known, and therefore could not have prevented them. The British minister, in reply, (7th June, 179^,) represented th&t these acts were notorious and unconcealed, and well known to the local author- ities. He expressed his concern at the decision at which the Govern- ment had arrived, and added : ■ For all these reasons, notwithstanding the deference which he shall ever preserve for ,the sentiments of this Government, the undersigned conceives himself justified in hav- ing entertained a confidence that the Government of the United States would not only have repressed this insult offered to its sovereignty, but also that the aggression on the subjects of the Crown of Great Britain would have been repaired by the restitution of vessels thus captured.' At the date of Mr. Jefferson's letter, and for a considerable time afterward, it was a disputed question whether the courts of the United States had jurisdiction to inquire into captures made under the circum- stances above mentioned, or to order restitution; and this question re- mained unsettled until the jurisdiction was afiirmed by a judgment of the Supreme Court, delivered on the 18th February, 1794. Owners of vessels unlawfully captured were in the mean time debarred from any redress ; and to refuse restitution, unless through the medium of the courts, was to refuse it altogether. After this a vessel was fitted out and armed as a French privateer in the port of Philadelphia itself, under the name of the Little Democrat. The Government did not seize or detain her; it relied on an expectation that the-French envoy would not permit her to sail. She sailed, how- ever, and engaged in depredations on British commerce. '■ Report of the Neutrality Law Commissioners, p. 19 ; Appendix to British Case, vol, iii. ^Appendix to British Case, vol. v, p. 242. ^lbid,p. 244. 236 TREATY OF WASHINGTON. On the 4th August, 1793, circular iastructions were seut to the cols- lectors of customs -within the United States, intended, though not ex- clusively intended, to provide against violations of neutrality. Accord- ing to these instructions, vessels originally fitted out by either belligerent in ports of the United States were not thenceforth to have asylum in any district of the United States. Any vessel contravening the rules laid down was to be refused a clearance until she should have complied with what the governor of the State might decide in reference to her. Care, however, was to be taken in this not necessarily or unreasonably to embarrass trade or vex any of the parties concerned. In order t© guard against contraventions, the condition as to military equipment of every vessel arriving in a port of the United States was to be ascer- tained by accurate survey made on her arrival aind again before her [27 j departure ; but no attempt was to be made to inspect "any * ves- sel of war in the Immediate service of the government of a foreign nation." A schedule of rules was appended to these instruc- tions; and it is material to observe what these rules permitted and what they prohibited in the ports of the United States, disregarding only some specific limitations which had reference to treaties then existing between the United States and France. They permitted — 1. Equipments of merchant vessels by either belligerent, "puie'y for the accommodation of them as such." 2. Equipments of vessels of war in the immediate service of the gov- ernment of either belligerent, which, if done to other vessels, would be of a doubtful nature, as applicable either to commerce or war. 3. Equipments of a like nature done to vessels fitted for merchandise and war, whether with or without commissions. 4. They permitted also armed vessels of either belligerent, which should not have infringed any of its rules, to " engage or enlist their own subjects or citizens, not being inhabitants of the United States." They prohibited " equipments of vessels in the ports of the United States which are of a nature solely adapted for war." '■ Any kind of equipment, therefore, which might be applicable either to war or to commerce, was declared lawful, whether done to. a vessel fitted for war and commerce, or to a vessel actually commissioned as a public ship of war. The only question was as to the nature of the equipment. If it was of such a character as to be applicable solely and exclusively to war, it was forbidden ; if not, it was not forbidden. These rules have always been referred to with approval and respect by American writers on international law. Notwithstanding the instructions, privateers continued to be fitted out in American ports, and privateers which had been previously fitted out appear to have been suffered to enter, refit, and depart unmolested. Thus, on the 29th December, 1793, the British minister, Mr. Hammond, wrote to Mr. Jefferson : The clanger to be apprehended from these last-mentioned vessels (privateers illegally fitted out in ports of the United States) still continues to exist to a very alarming degree ; since, notwithstanding the repeated assurances I have received from the Federal Government of its determination to exclude those privateers from any future asylum in its ports, and the sincerity of its desire to enforce this determination, I have reason to infer that, in other quarters, means ha.vo been successfully devised either to elude its vigilance, or to render nugatory its injunctions. This inference arises from the information I have received— that the privateer Le Citoyeu GenSt, fitted out at Charlestou, was, on the 21st of August, permitted to return to the port of Philadelphia for the second time, to remain there some days, and then to proceed to sea for the pur- ' Appendix to British Case, vol. v, pp. 269, 270. COUNTER CASE OF GREAT BRITAIN. 237 pte of commencing new depredations, wliich, as it appears from tlie public prints, ate is now prosecuting in the adjacent seas; that Le Petit Democrat, and La Carmag- liole, both fitted out in the Delaware, -were permitted to enter the port of' New York, ajid to coptinue therein unmolested during a great part of the months of August, Sep- tefaber, and October last; that the latter vessel is still in that port, and that the former, having sailed from thence in company with the French fleet, under the charge of Admiral Seroy,'and having separated from it at sea, proceeded first to Boston, and afterward returned for a second time to New York, wherein she at present remains.' On the 5tli November, 1794, he wrote to Lord Greuville : In conformity to the intention expressed in my dispatch No. 31, I have now the lonoi of transmitting to your lordship a list, compiled from returns sent to me by His Majesty's consuls, of such British vessels as have been brought as prizes into ports of theUuited States, since the commencement of the present hostilities to the beginning of tie month of August. On this list it is proper for me to remark, that the value of a o'rinsiderable proportion of the British vessels captured, and of their cargoes, is omitted iff the consular returns ; that of those of which the value is mentioned, though it be much underrated, the amount is £195,548 sterling ; and that of seventy-five British prizes, forty-six were made by privateers fitted out in ports of the United States. The depredations of these last-mentioned vessels, which seemed to have heen insome itteasure suspended by the appearance of a British naval force in these seas, have, by recent accounts from Charleston, recommenced. I likewise learn from Baltimore that several vessels are now arming in that port, for the purpose of proceeding to Port de Paix, in Saint Domingo, or to Guadaloupe, and of there procuring French commissions. Thoiigh, by an act passed in the last session of Congress, this be a punishable offense, the difficulty of obtaining legal proof of the intention of the persons arming such vessels is a sufficient objection to the institution of any judicial proceedings thereon ; and it is useless to address any .complaints upon subjects of this nature to me General Government, since thu investigation of them is commonly committed to the governors of the respective States, of whom a great majority is so hostile to Great Britain as readily to connive at measures the execution of which may be injurious to her in- terests.^ .^ The British vice-consul at Charleston wrote as follows, on the 28th Jfovember, 1794, to the consul, (who was then absent on leave:) [28] * Notwithstanding the laws of the United States are so guarded against any breach of neutrality, the French here evade them, and arm as many privateers as ever. Yesterday I acquainted the collector of the Federal customs in this port, who is directed by the Secretary of the Treasury to inspect ail vessels in this place, and see that none of them in any way whatever commit a breach of the laws — That tlie brig Cygnet, fitted for war in this harbor, but afterward permitted to clear ont as a merchantman, having been disarmed and her ports nailed up, had her guns «ent after her in the privateer L'Ami de la Pointe h, Petre, took them on board off this bar, mounted them, knocked out her ports, and proceeded to sea, fully equipped as a .privatfeer. That the schooner St. Joseph Sugna cleared for Port au Paix as a Si^anish prize ; had no gunsimonnted when she dropped down to the jjort, nor any appearance in her hull «f having been fitted for war, although her rigging bad every apparent mark of the privateer ; had previously to her going over the bar her quarter-deck oS, port-holes cut, and guns mounted. Thattlierfe was a brigantine fitting at Gail! ard's wharf, which came iu from Port au Paix, pierBed for twelve guns, with a high quarter-deck, the bulk-head of which was eutaway, and beams laid level with the main deck, which, from every appearance, is meant to proceed in the same manner the above schooner did, hy cutting away the old quarter-deck after she drops down, and getting her guns sent after her. That a new prize schooner, called the Swallow, was fitting in same manner, and a Providence sloop, with many vessels of a larger size, among which is the old Delaware ftigatfe that was sold after the peace, and fitted for a South Sea whaler. Also, a sloop lying on the stream, with a large quantity of gunpowder on board, supposed to be for the purpose of supplying the privateers.^ The Cygnet cleared for, Port au Paix with a trifling cargo, there got a commission, and on her return made several prizes, which she sent into Charleston, and of which the local court refused to decree restitu- tion. The dispatches of the British consuls at Charleston and elsewhere in 1 Appendix to British Casj, vol. v, p. 268. ^ibid., p.sye. 3Ibid.,p. 284. 238 TREATY OP WASHINGTON. 1794, 1795, and some subsequent years, repeatedly refer to privateers fitting out or increasing their armament in ports of the United States, the difficulty of obtaining evidence against them, and the absence of effectual means of repression. Thus the consul at New York, on the 30th November, 1795, after a complaint of a privateer (the Coquette) fitted out in New York, which had taken four prizes, writes : When such vessels are fitted out in America in a secret manner, it is difacult to pro'- cure proof against them, and I apprehend the law prohibiting the practice is not ade-' quate to the purpose, nor is it enforced with sufficient activity.' And, on the 27th April, 1796, the vice-consul at Charleston wrote: Inclosed you will, however, receive the state of them, (the proceedings in prize causes hefoi-e the Supreme Court,) as handed me by His Majesty's charge d'affaires in Philadelphia, from which it would appear nothing but the ownership being in Ameri' can citizens will cause a restoration of prizes, and that the law of the 5th June, 1794, passed in Congress, as well as the general law of nations, so far as respects the arming, equipping, augmenting, or altering the ships of war or privateers of any power at war in neutral ports, are entirely set aside in the courts of this country. Indeed, Mr. Chase, one of the Federal judges, gave it as his opinion that the citizens of the United States had a right to build and equip ships of war as an article of trade, and to dis- pose of them to either of the belligerent powers' without any breach of their neutral- ity, provided none of those were in any manner concerned in them after they became cruisers. ^ It has thus been seen that privateers were fitted oat, armed, and com- missioned in American ports. These privateers committed considerable depredations on British shipping, and took many prizes. Let us now see what was done as to the restitution of the prizes, and compensation for the injuries thus sustained by Great Britain. The final judgment of the American Government as to what was right to be done in this matter was conveyed in a letter which Mr. Jefferson addressed to the British minister, dated 5th September, 1793. The sub- stance of this letter was, that the Government recognized an obligation to restore prizes actually brought into its ports after the 5th June, 1793, if captured by privateers which had been unlawfully fitted out within its jurisdiction, or to use all the means in its power to do so. If, in any case, it had forborne or should forbear to do this, it would hold itself bound to make compensation to the owners.^ It recognized no other obligation. We shall presently see how this engagement was under- stood. The promise or engagement contained in this letter was expressly confined to prizes brought in after the 5th June, 1793. The line of dis- tinction thus drawn, though intelligible as between the United States and France, because this was the date of Mr. Jefferson's prohibitory letter to M. Genet, was, so far as the rights of Great Britain were con- cerned, purely arbitrary, the prizes brought in before that date being as unlawful, according to the law of nations, as those brought in [29] after it, and the right to restitution or compensation being. *pre- cisely the same. The American Government, however, refused to make either restitution or compensation for prizes brought in pre- vious to the time at which the resolution that they were to be treated as illegal was formed and made known to the French envoy. The British minister as to this wrote as follows, on the 7th June, 1794^ to the then Secretary of State, Mr. Randolph : From the same paper, it is also evident that I have never acquiesced in the propriety of the determination of tliis Government not to restore vessels captured previously to the 5th of June, as well for the reasons which I have there stated, as because I have never perfectly comprehended the principles which could legalize the prizes auteoe- 1 Appendix to British Case, vol. v. p. 292. =Ibid., p. 294. 'Ibid., p. 255. COUNTER CASE OF GEEAT BRITAIN. 239 dently to that period, and invalidate those which were made subsequently to it. The list of those prizes annexed to the memorial will evince that (whatever may have been e()iioeivcd by some) their value was not inconsiderable ; but even if their amount had b&n less considerable, the question in a national point of vifew could not have been aifeoted by that circumstance.^ . It may, perhaps, be supposed that the owners of these vessels, though they did not obtain restitution, would be awarded compensation under Article VII of the treaty of 1794. But it will presently be seen that this was refused to them. The cases in which the Government had "forborne" to make restitu- tion were those of three British merchant-ships which had been cap- tured by privateers unlawfully fitted out, and brought by the captors into American ports after the 5th June, 1793, but which the Govern- ment, from motives of policy, was unwilling to take forcibly out of the captors' hands. No provision having been made by Congress for the compensation promised in the case of these three vessels, the owners of these and of a fourth, which was admitted to stand on the same ground, had no other resource than to carry their claims before the commission- ers afterward appointed, which they accordingly did. By the seventh article of the treaty of 19th November, 1791, after a recital that certain British subjects complained "that, in Decisions ortiK^com- the course of the war, they have sustained loss and dam- viuhTnid"''of Se age by reason of the capture of their vessels and merchan- TreMjor irs*. dise, taken within the limits and jurisdiction of the States and brought into the ports of the same, or taken by vessels originally armed in ports of the said States," it was agreed that, "in all such cases where restitu- tion should not have been made agreeably to the tenor of the letter frOtn Mr. Jefferson to Mr. Hammond, dated at Philadelphia, September 5, 1793, (a copy of which was annexed to the treaty,") the complaints should be referred to commissioners, who were empowered to award compensation. Various claims were made before the commissioners so appointed. Three leading decisions pronounced by them will be found in the ap- pendix to this Counter Case. By these decisions it was ruled — 1. That, according to the true construction of Article VII of the treaty, coupled with Mr. Jefferson's letter, no claim could be made ou account of a capture made before the 5th June, 1793. Hence compensa- tion was refused iu the case of a British vessel which had been cap- tured on the 8th May by the Sans Culottes, a privateer fitted out at Charleston, and had been openly brought by her captors into the port of Philadelphia.^ 2. That no compensation could be claimed for captures made by ves- sels illegally fitted out within the jurisdiction of the United States unless tlte prizes had been subsequently brought into an American port. The own- ' Appendix to British Case, vol. V, p. 276. ""All the dqcuments above quoted were of the date of 1793, the latest of them ot November 22. They were all public, and in the hands of the negotiators of the pres- ent treaty. That treaty, which was signed in Novembej;, 1794, makes the letter of September, 1793, the standard of the engagements of the United States in cases of this nature, and directs us, in all cases where restitution shall not have been made agree- ably to the tenor 6f that letter, to proceed as in the other cases committed to us. The tenor of that letter appears to me to respect only oases occurring after the .5th June, and contains no stipulation either of restitution or compensation in cases anterior to that'date. The case of the Fanny, Pile, master, now under consideration, is of anterior d'rt'6,,and therefore is, in my opinion, not within the powers or duty of tins board fur- ther to consider."— Decision in the case of the Fanny, Pilr, master. Appendix ta British Case, vol. v, p. 319. •240 TREATY OP WASHINGTON. ers, therefore, of a vessel which, the captors had destroyed at sea were entitled to no compensation.^ 3. That where the prize had been brought in, no compensation could be claimed if the claimant had not taken proceedings in a district court of admiralty, and proved his case there by sufiicient testimony, or if there had been any negligence or any delay in instituting or carrying on such proceedings, or in enforcing a judgment if obtained.^ (30J *The real effect, then, of the engagement entered into by the G-ov- ernment of the United States as to restitution or compensation, appears to have been this. The owner of a vessel captured by a ship which had offended within American waters against the prohibitions of the United States Government, was at liberty to obtain, if he could, by proceedings in a court of admiralty, a decree for restitution, and the Government undertook in that case either to use all the means in its power to enforce the decree should it be resisted, or else to indemnify him for the loss.^ If he could not obtain a decree, he had no redress; 1 Decision in the case of the Jamaica, Martin, maister. Ibid., pp. 311 et seq. 2 "From this examination of the letter, which is given to us for a rule, it results tha/t it was the opinion of the President, therein expressed, that it was incumbent on the United States to make restitution of, or compensation for, all such vessels and property belonging to British subjects as should have been — first, captured between the dates of June 5 and August 7 within the line of jurisdictional protection of the United States, or even on th6 high seas ; if, secondly, such captured vessel and property were brought into the ports of the United States ; and, thirdly, provided that, in cases of capture ■ou the high seas, this responsibility should be limited to captures made by vessels armed within their ports ; and, fourthly, that the obligation of compensation should extend only to captures made before the 7th August, in which the Uaited States had confessedly forborne to use all the means in their power to procure restitution ; and that, with respect to cases of captures made under the first, second, and third circum- stances above enumerated, but brought in after the 7th August, the President had de- termined that all the means in the power of the United States should be used for their restitution, and that he thought that compensation would be equally incumbent oa the United States in such of these cases (if any such should at any future time ooonr) where the United States, having decreed restitution, and the captors having opposed, or refused to comply with or submit to such decree, the United States should forbear to carry the same into eifect by force. " Such was the promise. In what manner was that promise to be carried into effect ? It was not absolute to restore, by the hand of power, in all cases where complaint should be made ; if it had been such, there would have been no want of complaints, and France herself would have had a better reason for making them than a;uy other party. No, the promise was conditional. We will restore in all those cases of com- plaint where it shall be established by sufficient testimony that the facts are true which form the basis of our promise — that is, that the property claimed belongs to British subjects; that it was taken either within the line of jurisdictional protection, or, if on the high seas, then by some vessel illegally armed in our ports ; and that the property so taken has been brought within our ports. By whom were these facts to be proved? According to every principle of reason, justice, or equity, it belongs to him who claims the benefit of a promise to. prove that he is the person in whose |avor, or under the circumstances in which the promise was intended to operate ; and since it is the party promising redress who must first be convinced by testimony of the truths and justice of the complaint before the obligation of his promise can apply and bind him to performance of the stipulated relief, he is, of course, the proper person to decide under what forms,' and in what manner, the examination and proof of these facts is to be conducted. Accordingly, every civilized nation has established laws and judicial forms for doing right, for redressing wrongs, and for restoring to the true owner property which may have been unjustly wrested from him." — Decision in the case of the Elizabeth, Eoss, master. Appendix to British case, vol. v, p. 322. ' " It appears that by the expression ' all the means in their power,.' they meant, iirst, those means which the Constitution and laws had provided for the redress of wlong and force whenever it should be rendered-necessary by any act of opposition to the ordinary course of justice. That although doubts entertained by a part of the judicial establishment of its jurisdiction in these cases had placed ^hem for a time nnder.the immediate eye of the Executive power, yet to the complainant this produced no im- portant change, since the same examination and proof of facts was required to estab- jish the justice of his complaint and to guide the decision of the President, as would COUNTER CASE OP GREAT BRITAIN. 241 if the means used by the Government proved ineffectual, lie had likewise no redress.i He was equally without redress if his vessel had been plundered or destroyed at sea and not brought into an American port. If the capture was made before a certain date arbitrarily Axed, then, although the prize had been brought within the jurisdiction of the United States, the Government would do nothing to secure him either restitution or indemnity. . jThis is one of the two precedents on which the United States rely as establishing the proposition " that when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters in any of the foregoing respects, the neutral should make com- pensation for the injury resulting therefrom,"^ and as justifying the claims it now makes against Great Britain. What the other is we shall see presently. Let us now observe the terms in which this transaction has been rep- resented to the arbitrators : The Grovernment of General Washiugtoa determined, liowever, as it had been in- formed of: these attempts at violating the sovereignty of the nation, that it was the duty of the United States not only to repress them in future, but to restore prizes that might be captured by vessels thus illegally fitted out, manned, equipped, or commis- sioned within the waters of the United States, or, if unable to restore them, then to make compensation for them.^ • From this examination it ai>pear8 * "* that the United States undertook to make doilipensation for the injuries resulting from violations that had taken place where .' • they had failed to exert all the rneans in their power to prevent them. It [31] was subsequently ^agreed between the two governments that in cases where -' ' ■ restitution of the prizes should be impossible, the amount of the losses should be aSeertaiiied by a method similar to that provided by the treaty of Washington, and iiKat a money payment should be made by the United States to Great Britain in lieu Of restitution.* The United States are aware that some eminent English publicists, writing on the subject of the Alabama claims, have maintained that the obligation in such oa.se to make compensation would not necessarily follow the proof of the commission of the wrong ; but the United States confidently insist that such a result is entirely incon- li'stent with the course pursued by Great Britain and the United States during the administration of General Washington, when Great Britain claimed, of the United States compensation for losses sustained from the acts of cruisers' that had received ■warlike additions in the ports of the. United States, and the United States admitted the justice of the claim and paid the compensation demanded.' Her Majesty's government deems itself entitled to ask whether these are correct representations of the facts stated in the foregoing pages. One of the vessels equipped and armed for warlike use within the territory of the United States was, after leaving it, commissioned as a public ship of war of the French Republic, under the name of the Oassius. The subsequent history of the ship has been often referred to in argu- ment, and may be briefly noticed here. The Cassius had sailed from the Delaware Eiver in January, 1795, liave been required before the judges. That after the 18th February, 1794, the decision of theSxipreme Court had removedthose doubts which had for a time influenced the conduct of some of the inferior courts. And it does not appear that after that decision there was any delay on the part of the inferior ooiirts in rendering, nor any opposition on the part of the captors to the execution of their process or decrees, insomuch that there existed no occasion thereafter to fulfill the ultimatum of the promise by exerting force to compel restitution."— The Elizabeths Ibid., p. 327. ; '"It appears from the first part of this inquiry that, in promising to use all the means in their power for the restitution of vessels captured after that date, the United States did not undertake to make compensation in case those means should fail of their effect."— The Elizabeth. .Ibid., p. 327. 2 Case of the United States, p. 313. 'Ibid., p. 130. ... "Ibid., p. 131. ^ Ibid., p. 136. . 16 A— II 242 TEEATY OF WASHINGTON. after an order to seize her had been issued, avoiding deten- ca,eofti>eca.s,„,. ^.^^ partly bj artiflcc, and partly by threatening an armed resistance to the United States authorities. She went to Saint Domingo, was there formally transferred to the French government, and commis- sioned under the command of an American officer. She returned in Angust to Philadelphia. While she was in that port proceedings were instituted against her and her commander by the owners of an American vessel which had been captured by her at sea, and condemned by a French prize-court. The owners alleged that the capture was illegal, and claimed damages. The subsequent proceedings and correspondence are too idug for recital, and may be read in well-kaown books.^ It is suffi- cient to mention : 1. That the French minister laid claim to the ship as a public ship of war, and refused to be a party to any proceedings in the local courts, or to admit in any way their jurisdiction. He refused also to furnish any proof of her alleged transfer to his government, or of her character as a public ship, beyond bis own declaration, given to the Executive as an act of courtesy, that she had been so commissioned at a certain date. 2. That the Government of the United States, while affirming, as an unquestioned fact, (which had been incidentally proved on the trial of a person concerned in it-,) that the Oassius had been armed and equipped within the United States, in violation of their neutrality, did not claim any right to seize and detain her, but, on the contrary, instructed its law officer to present to the court a " sugge,stion" (as it was technically called) that, as a public ship, she ought to be released as exempt from civil proceedings, and her commander discharged. 3. That, on the release of the ship, the French minister was informed by the Secretary of State that she was ready to be delivered to his order. The French minister, however, who had previously ordered her to be disarmed, refused to receive her, and she lay unclaimed for two years, at the end of which she was sold for a trifling sum by order of the Gov- ernment, after a prior notification to the French consul-general, who had answered that his government had given him no authority in the matter. 3. YioLATiONS OF American neutrality during the war carried ON BY Spain and Portugal against the Spanish-American COLONIES. During this war the ports of the United States were again used, and 3. vioution of on a still larger scale, for fitting out privateers against na- dS't"e"w»""ci,? tions with which the Eepublic was at peace, Tlie vessels PMup^'.S °t the so fitted out were numerous, arid they appear to have been Animcnnciomes. f^j. ^|jg most part owucd, as Well as commanded and manned, by citizens of the United States. Tbe object of these ventures was plunder; the men employed in them were under little or no discipline or control ; and they sometimes degenerated into actual piracy, from which, indeed, tliey do not seem to have been far removed. Oa [32] more than one occasion the courts of the United *States had to determine whether the captain and crew of the so-called privateer had been engaged in a honafide exercise of ihe jus belli, though under a commission obtained from an unrecognized government, or were, under 1 A statement of tlie facts of this case will be found in a note by Mr. Dana in the Appendix to the Case of the United States, vol. vii, pp. 18-23. COUNTEE CASE OF GREAT BRITAIN. 243 ' the color of sucli a commission, mere robbers on the high seas; and, more than once, persons so tried were condemned to suffer death as pirates.'^ Eepeated and earnest remonstrances on this subject were, during sev- eral years, addressed to> the Government of the United States by the ministers of Spain and Portugal. The com- tw°e''r'fh°''°u'SKd plaints of Portugal extended over four years, from 1816 to "°'"''°'' ''°""'°'- 1820. An abstract of them will be found in a dispatch addressed by Harl Eussell to Mr. Adams, and dated 30th August, 1865.^ The Portu- guese minister was repeatedly told, in answer, that the Government of the United States could only exercise the powers with which it was in- vested by the law ; and he was told that, before prosecutions could be instituted, a list of the persons chargeable should be furnished, together with evidence to support the charges. This correspondence has been referred to, but very inaccurately, in the Case ot the United States. Thus, a note of the 8th March, 1818, addressed by the Portuguese min- ister to Mr. J. Q. Adams, the Secretary of State, is mentioned with the following comment : ' " The note making this complaint contained neither proof of the allegations in the note as to the fitting out of the vessels in the United States, as to their being manned with Americans, nor indications from which the United States could have discovered those facts for themselves." The note in question, which was very short, eoatained the following passage : "An extract of the documents that prove these facts 1 have the honor of inclosing in the annexed paper. The. documents themselves are at your disposition when required."* But Mr. Adams did not ask for the documents. He contented himself with answering : The Government of the United States having used all the means in its power to pre- vent the fitting out and arming of vessels in their ports to cruise against any nation Ti'ith whom they are at peace, and having faithfully carried into execution the laws enacted to .preserve inviolate the neufaftl and pacific obligations of this Union, cannot consider itself bound to iuderanify iimividual foreigners fur losses by captures, over which the United States have neither control nor jurisdiction. For such events no nation can, in principle, nor does in practice, hold itself responsible. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the faQts can be proved. The'doouments to which you refer must, of course, he ex parte statements, ■which in fortugal or in Brazil, as well as in this country, could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have Oaminitted the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to siscertain the facts upon litigation between them, to punish the outrages which may be daly proved, and to restore the property to its rightful owners, should it also be brought within our jurisdiction, and found, upon judicial inquiry, to have been taken in the manner represented by your letter. By the universal laws of nations, the obU- gatioBS of the American Government extend no further.-^ " The United States," wrote Mr. Adams on the 30th September, 1820, " had repressed every intended violation" of neutral duties " which had been brought before their courts, and substantiated by testimony conform- able to 'principles recognized by all tribunals of similar jurisdiction."^ They had also enacted more stringent laws. But it had been represented by ' See United States m. Klintocli, 5 Wheaton, 144 ; United States vs. Smith, ibid., 153 ; United States vs. Furlong, ibid., 134; United States vs. Jones, 3 Washington's C. C, 209 ; aud the case of the officers and crew of the Irresistible, 18 Niles's Register, 256, 275. ' Appendix to British Case, vol. iv. No; 5, correspondence respecting the Shenandoah, p. 25. Appendix to Case of the United States, vol. iii, pp. 553 et seq. 'Case of the United States, p. 139. * Appendix to British Case, vol. iii, p. 149. ^ Ibid., p. 150. * Ibid., p. 158. 244 TREATY OP WASHINGTON. Portugal that, in spite of these newly enacted laws, the acts complained of continued to be " both frequent and notorious;" it was afiftrmed that the officers of the Government were " lukewarm ;" that notprious as the offenses were, it was difficult to obtain the evidence which was required; and t^e multitude of persons interested, directly or indirectly, in priva- teering, interposed great obstacles in the way of a prosecution. In a note addressed to Mr. Adams on the 23d November, 1819, by M. Correa de Serra, the grievances of Portugal were recapitulated as follows : I have the houor of suhmitting to you the following facts and considerations : During more than two years I have been obliged by my duty to oppose the sys- tematic and organized depredations daily committed on the property of Portuguese subjects by people living in the United States, and with ships fitted in ports of [33] the Union, to the ruin of the commerce of Portugal. I do justice *to, and .am grateful for, the proceedings of the Executive, in order to put a stop to these depredations, but the evil is rather increasing. I can present to you, if required, ai list of fifty Portuguese ships, almost all richly laden, some of them East Indiamen, which have been taken by these people during the period of full peace. This is not the whole loss we have sustained, this list comprehending only those captures of which I have received official complaints. The victims have been many more, besides violations of territory by landing and plundering ashore, with shocking circumstances. One city alone on this coast has armed twenty-six ships which prey on our vitals, and a week ago three armed ships of this nature were in that port waiting for a favor- able occasion of sailing for a cruise. Certainly, the people who commit these excesses are not the United States, but nevertheless they live in the United States, and employ against us the resources which this situation allows them. It is impossible to view them otherwise than a wide-extended and powerful tribe of infidels, worse still than those of North Africa. The North Africans make prizes with leave of theii govern- ment according to their laws and after a declaration of war; but these worse infidels, of whom I speak, make prizes from nations friendly to the United States, against the will of the Government of the United States, and in spite of the laws of tlae United States. They are more powerful than the African infidels, because the whole coast of Barbary does not possess such a strength of privateers. They are numerous and widely scattered, not only at sea for action, but ashore likewise to keep their ground against the obvious and plain sense of your laws, since most generally, wherever they have been called to the law, they have found abetto# who have helped them to evade the laws by formalities. I shall not tire you with the numerous instances of these facts, but it may be easily conceived how I am heartily sick of receiving frequent communications of Portuguese property stolen, of delinquents inconceivably acquitted, letters from Portuguese merchants deeply injured in their fortunes, and seeing me (as often has been the case) oppressed by prayers for bread from Portuguese sailors, thrown penniless on the shores after their ships had been captured.' In the Case of the United States, the minister who writes thus earnestly and vehemently is represented as " attachiug little or,' no importancei to the matter."^ The reason given is, that he adds that he has chosen the moment to make a visit to Brazil. But, in the sentences which precede and follow, and of which no notice is taken in the Case of the United States, he has explained why he chose to leave his post at that particular time, namely, that until, by amendment of the law, or otherwise, the proper means should be found for putting an end to this " monstrous conspiracy," he found by experience that complaints were useless, and should refrain from continuing to present them without positive orders.' Portugal asked (16th July, 1820) for the appointment of a joint com- ' Appendix to British Case, vol. iii, p. 155. = Case of the United States, p. 143. ^ At p. 146 of the Case of the United States, Earl Eussell is accused of having pur- posely omitted, in his correspondence with Mr. Adams, to notice the promises made by the American Government, that persons offending against the laws should be prose- cuted. On the contrary he expressly mentioned this promise. (See Appendix to Case of the United States, vol. v, p. 558.) Again, at pp. 142, 146, he is represented 'as ap- proving, assuming, assenting to, all the arguments which he had simply recounted as having been ineffectually urged in the former controversy by Portugal. COUNTER CASE 01" GREAT BRITAIN. 245 mission ; bat this was refused by the United States. " The appoint- mentof commissioners," it was replied, "to confer and agree with the .rfnisters of Her Most Faithful Majesty upon, the subject to which your litter refers, would not b^ consistent either with the Constitution of the United States nor with any practice usual among civilized nations. The jadicial power of the United States is, by their Constitution, vested in Jieir Supreme Court, and in tribunals subordinate to the same. The 'Jadges of these tribunals are amenable to their country by impeachment, and if any Portuguese subject has suffered wrong by any act of any citizeu of the United States within their jurisdiction, it is before these tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States committed out of their jurisdiction and beyond their control, the Government of the United States is not responsible." 1 In 1850, the proposal for a commission to investigate these claims was renewed by Portugal. The Portuguese minister then took notice that captures of Portuguese vessels by privateers, fitted out and equipped in ports of the United States, had continued to be made down to the year 1828; that upward of sixty had been captured or plundered, and that the fitting out of these privateers at Baltimore had been a matter of public notoriety. He added, in the same dispatch, the following state- ments : The undersigned begs leaye to say, and he submits, tliat it was the duty of the United States Government to exercise a reasonable degree of dilig;ence to prevent these pro- ceedings of its citizens, and that, having failed to do so, a just claim exists on the part of the government of Portugal in behalf of its despoiled subjects, against the United States; for the amount of losses sustained by reason thereof. M. de Figanifere would here recall to the honorable Mr. Webster's attention the state of the negotiations between the two governments on this subject. So early [34] as the year 1816 the Chevalier ''Corr^a de Serra, ITis Most Faithful Majesty's plenipotentiary, apprised Mr. James Monroe, the then Secretary of State, of these iil'egal armaments in Baltimore? In March, 1818, that minister claimed indem- nification by the Government of the United States for the losses sustained by Portuguese subjects from the captures made by the said privateers, to which application the Sec- fl'tary of State, in a note dated the" 14th of said March, replied that "the Executive having used all its power to prevent the arming of vessels in its ports against nations Tfith whom it was at peace, and having put into execution the acts of Congress for keeping neutrality, it could not consider itself obliged to indemnify foreign individuals for losses arising from captures upon which the United States had neither command nor jurisdiction." The undersigned willingly admits that if the Executive of the United States had used all its power to prevent the arming of vessels within its territory, and their sail- iiig from its ports against the commerce of Portugal, no claim could have been set up by or in behalf of Portuguese subjects against the Government of the United States, but that the only remedy would have been against the wrong-doers, in the courts of law of the United States. But, in point of fact, the fitting-out of these privateers was so notorious that, by due diligence on the part of the Goyernment and the officers of the United States, the evil might have been prevented. It appears to the undersigned that the only question to be examined is, whether the Soverument of the United States could, by the exercise of a reasonable degree of dili- gence, have prevented its citizens from going out of its ports in armed vessels, to cruise against the commerce of Portugal, a friendly nation with which the United States had ever been at peace, and had uniuterrupted commercial relations. The undersigned respectfully states that the captures in question were made by American citizens, in vessels fitting out in ports of the United States, and that the fitting out of these vessels, he verily believes, was " not checked by all the means in the power of the Government," but that there was a " neglect of the necessary means of 'Suppressing" those expeditions. 'The public notoriety of these expeditions is easily shown. A reference to Niles's Register, and other organs of public information published in those times, will suffice for this purpose ; and nothing was more generally known at Baltimore than that these expeditions were commonly fitted out nt that port. Indeed, privateers were not only equipped in Baltimore, but they were accustomed to bring their captures there for 1 Appendix to British Case, vol. iii, p. 1.57. 246 TREATY OF WASHINGTON. sale. The Government of the United States might, by the exercise of due diligence, have become acquainted with the facts, and prevented the privateers from sallying forth. The authorities of the State of Maryland were evidently negligent in permitting these warlike preparations in the port of Baltimore, and as no claim can be made by Portugal against that State, all complaints founded upon the negligence of the State authorities must, of course, l)e made against the Government of the United States, and this Government is, therefore, as the undersigned conceives, liable for that neglect.' To this dispatch no answer appears to have been made. The Govern- ment of the United States had reiterated its refusal to refer the claims to a commission, objecting that they were '' obsolete."^ It was, how- ever, at the same time, pressing against Portugal a claim for compeii- sation on account of an American privateer, destroyed in the port of Fayal in 1814 — a claim, therefore, which was of still earlier date than those of Portugal, and was afterward referred to arbitration and rejected. The complaints and expostulations of the Spanish minister, Don Luis de Onis, were still more frequent and more vehement than iwe°e"°"I,h= TnVd thoso of thc ministcr of Portugal; but the substance of tatesan .imm. ^jjg^jj ^j^g ^jjg game. Thc uotoriety of the acts complained of, the openness with which they were done, the toleration of them by the authorities, the refusals of the collectors of customs to act on evidence within their reach,' the difficulty which the Spanish consuls experienced in obtaining any testimony against unlawful speculations in which so many persons were interested, were strongly and repeatedly insisted on. These grievances were finally summed up in a note addressed to Mr. J. Q. Adams on the 16th of November, 1818, in the course of the negotiations for the treaty of the succeeding year : Whatever may be the forecast, wisdom, and justice conspicuous in the laws of the United States, it is universally notorious that a system of pillage and aggression has been organized in several ports of the Union against the vessels and property of the Spanish nation ; and it is equally so that all the legal suits hitherto instituted by Hie Catholic Majesty's consuls, in the courts of their respective districts, for its prevention or the recovery of the property when brought into this country, have been, and still are, completely unavailing. The artifices and evasions by means of which the letter of the law has on these occasions been constantly eluded, are sufficiently known, and even the combination of interests in persons who are well known, among whom are some holding public offices. With a view to afford you and the President more [35"| complete demonstration of the abuses, aggressions, and piracies *alluded- to, I inclose you correct lists, extracted from authentic documents deposited in the archives of this legation, exhibiting the number of privateers, or pirates, fitted out in the United States against Spain, and of the prizes brought by them into the ports of the Union, as well as of those sent to other ports, together with the result of the claims made by the Spanish consuls in the courts of this country. Among them you will find the case of two armed ships, the Horatio and Curiazo, built at New York, and detained by His Majesty's consul there, on the ground of their having on board thirty pieces o£ cannon concealed, with their carriages, and a crew of 160 men. On which occasion it was pretended that it could not be proved that these guns were not an article of com- merce, and they finally put to sea without them, the extraordinary number of officers and crew passing for passengers. The number of privateers, or pirates, fitted out and protected in the ports of this republic, as well as of the Spanish prizes made by them, far exceeds that contained in the within lists, but I only lay before your Government those of whichl have certain and satisfactory proofs. The right of Spain to an adequate indemnity for all the spoliations committed by these privateers, or pirates, on the Crown and subjects of His Catholic Majesty, is undeniable ; but I now submit it to your Govern- ment only to point out the extreme necessity of putting an end to these continued acts ^ Appendix to British Case, vol. iii, pp. 165, 166. 2 Mr. Clavton to Seuhor de Piganifere e Morao, March 30, 1850.— Appendix to British Case, vol. iii, p. 163. ' An instrucvive specimen will be found in the correspondence which accompanies the note of Don Luis de Onis to Mr. J. Q. Adams, of November 2, 1817, (see Appendix to the British Case, vol. iii, p. 118.) It does not appear that any answer was returned by the Secretary of State to this application. COUNTER CASE OF GREAT BRITAIN. 247 ()f kostility and depredation, aud of cuttiag short these enormous and flagrant abuses and evils, by the adoption of such effectual precautions and remedies as will put it out of the power of cupidity or ingenuity to defeat or elude them. In vain should we en- deavor amicably to settle and accommodate all existing differences, and thus establish peace aud good understanding between the two nations, if the practice of these abuses, and the course of these hostilities and piracies on the commerce and navigation of Spain should, as heretofore, continue uninterrupted in the United States. From the tenor of the documents now inclosed, and of the reflections suggested by the very nature and state of things, the President cannot hesitate to assent to my proposal on this'subjeot; and, as the Congress is now in session, I feel assured that, the proper op- portunity is afforded for the adoption of the necessary measures I have alluded to, and which I solicit as an essential basis of securing and maintaining a mutual friendship and/good understanding between the two nations.' ' . The list of privateers fitted out ia American ports, which was inclosed in the above note, included twenty-eight vessels of different classes. Her Majesty's government may be permitted here to recall the defi- nition of due diligence presented to the arbitrators in the Case of the United States: The Uuited States understand that the diligence which is called for by the rules of the treaty of Washington is a due diligence; that is, a diligence proportioned to the magnituide of the subject, and to the dignity and strength of the power which is to exercise it ; a diligence which shall, by the use of active vigilance, and of all the other means in the power of a neutral, through all stages of the transaction, prevent its soil from being violated; a diligence that shall, in like manner, deter designing men from GomDiiitting acts of war upon the soil of the neutral againSt its will, and thus possibly dragging it into a war which it would avoid; a diligence which prompts the neutral |.g the most energetic measures to discover any purpose of doing the acts forbidden by iffi good faith as a neutral, and imposes upon it tlie obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it. No diligence short of this would be due ; that is, commensurate with the emergency, or with the magnitude of the results of negligence.* The British governmencmay be permitted to express their belief that if this definition had been contended for in 1818 by Spain and Portugal, it would have been deemed by the Government of the United States to require much qualification. It is alleged in the Case of the United States^ that, by the treaty of the 22d February, 1819, compensation was made by the United States to Spain for injuries similar to those which they assert that they have sustained from Great Britain. Ko compensation was paid to Spain. The Government of the Uuited States appears to confound a reciprocal renunciation, in mass, of disputed claims not ascer- tained, and not admitted to be valid, with a payment, by set-off, of claims the validity of which is disputed on neither side. By Article IX of that treaty, for the purpose of putting an end to all differences be- tween the two powers, each agreed to renounce all claims upon the other, the renunciation including, on one side, "all claims of citizens of the United States upon the government of Spain arising from unlaw- ful seizures at sea, and in the ports and territories of Spain or the Spanish colonies;" and, on the other, all like claims of Spanish subjects upon the Government of the United States. On neither side was there an admission that the claims of the other were valid. On the part of the Government of the United States there was certainly no admission that it had, been guilty of negligence. On the contrary, when, in the preceding negotiations, the Spanish government had asked that the American Government should pledge itself to take some measures [36] in order to remedy "the abuses * which, contrary to the law of nations, and contrary to what is expressly stipulated in the treaty y • ' 'Appendix to British Case, vol. iii, p. 131. - Case of the United States, p. 158. 3 Pages 136 and 213. 248 TREATY OF WASHINGTON. of 1795, daily occur in some ports of tlie Union, in conseqaeuce of the vague and arbitrary interpretation which it seems the measures until now adopted are susceptible of, and bj' means of which the law is eluded" — in short, to amend its neutrality law — the refusal of the American Government was conveyed in these terms : " Of the many complaints which you have addressed to this Government in relation to alleged transactions in our ports, the deficiency has been, not in the meaning or interpretation of the treaty, but in the proof of the facts which you have stated, or which have been reported to yon, to bring the cases of complaint within the scope of the stipulations of the treaty.'" The complaint was, that many acts had been committed which were violations of international law as well as of the treaty. The answer was, that no sufficient proof had been given of these Anolations. It may be observed that the claims of the United States against Spain were founded on complaints very different, and apparently of very in- ferior force, to those urged by Spain against the United States. It may be further remarked that the treaty of 27th October, 1795, here referred to, contained, with other provisions for the protection of Spanish com- merce, an agreement that no citizen or inhabitant of the United States should apply for or take any commission or letters of marque for arming any ship to act as a privateer against Spanish subjects or their prop- erty, from any state at war with Spain, and that any person doing this should be punished as a pirate. The obligations of the United States to Spain did not rest alone on the general principles of international law, bnt on the exjjress stipulations of a treaty. 4. Later violations of the American nexjteality laws. As the United States have appealed to their history as illustrating Later vioiiiti n,..f ^hcir couccption of neutral duties, and of the measure of tiau/sH°°"'°""'''' diligence which those duties require, it is necessary to refer to some later passages in that historj', showing the impunity with which armed expeditions have been repeatedly, and with little or no attempt at concealment, organized within the United States, and Fiiibustermgejpi.- dlspatchcd thcncc against the territories of friendly na- d.iions. tions. The expeditions to which Her Majesty's government desire more par- ticularly to call the attention of the arbitrators are : The filibustering attacks under Lopez upon Cuba; Those under Walker upon Mexico and Central America ; The Fenian raids upon Canada. expeditions of LOPEZ AGAINST CUBA. The facts with regard to the expeditions undertaken against Cuba by Lopez from the United States are as follows : On the 11th August, 1849, the President of the United States issued Asainsicuba 1850 ^ pi'oclamation stating that " there is reason to believe that an armed expedition is about to be fitted out in the United States, with an intention to invade the island of Cuba or some of the provinces ©f Mexico," and that " the best information which the Execu- tive has been able to obtain points to the island of Cuba as the object of this expedition ;" and calling upon " every officer of this Government, 'Don Luis de Onis to Mr. J. Q. Adams, October 24, 1818, (appendix to British Case, Tol. iii, p. 129 ;) Mr. J. Q. Adams to Dou Luis de Ouis, October 31, 1818, (ibid., vol. iii. COUNTER CASE OP GREAT BRITAIN. 249 ei*il or military, to use all efforts in his power to arrest, for trial and pnuishmeiit, every such offender against the laws providing for the per- formance of our sacred obligations to friendly powers." ,Tbe Spanish adventurer, Lopez, whose preparations for a marauding InTOsion of Cuba, with a view to its annexation to the Lope^', nrst expe- United States, had given rise to this proclamation, con- ''"'°°' ^^■ tinued them undeterred. On the 7th May, 1850, he left New Orleans in a steamer with about 500 men, accompanied by two other vessels, and, on the 17th, landed at Cardenas, a small town on the northwest side of the island. Lopez occupied the town, but shortly afterward troops ar- rived from Havana, and he was compelled to re-embark, and escaped to the United States. ii On the 27th May Lopez was arrested ; but, no delay being granted by the district judge to procure evidence against him, he was discharged, amid the cheers of a large crowd. On the 15th July, forty-two of the persons who had been engaged with him in the attempted invasion, and who had been taken prisoners, were liberated by the Spanish authorities, and were taken to Pensacola by the United States ship Albany. [37] *0n the 21st July the grand jury at New Orleans found a true bill against Lopez and fifteen others, for violating the act of 1818. The American Government, however, failed in making out its case against one or two of the parties, and finally abandoned the prosecu- tion.i ' No sooner was Lopez at liberty, than he set to work to organize another expedition, of which an account is given by the President of the United States in his message to Congress of the 2d of December, 1851: Since the close of tlie last Congress, certain Cubans and other foreigners resident in the United States, who were more or less concerned in the previous invasion of Cuba, instead of being discouraged by its failure, have again abused the hospitality of this country by making it the scene of the equipment of another military expedition against that, possession of Her Catholic Majesty, in which they were countenanced, aided, and joined by citizens of the United States. * » * Very early in the morning of the 3d of August a steamer, called, the Pampero, departed from New Orleans for Cuba, having on board upward of 400 armed men, with evident intentions to make war upon the authorities of the island. This expedition was set on foot in the palpable violation of the laws of the United States. Its leader was a Spaniard, and several of the chief oflcers, and some others engaged in it, were foreigners. The persons composing it, however, were mostly citizens of the United States. » * » The steamer in which they embarked left Nfew Orleans stealthily and without a clearance. After touching at Key West, she proceeded to the coast of Cuba, and on the night between the 11th and 12th of August landed the persons on board at Playtas, within about twenty leagues of Havana. The main body of them proceeded to, and took possession of, an inland village, six leagues distant, leaving others to follow in charge of the baggage, as soon as the means of transportation could be obtained. The latter having taken up their line of march to connect themselves with the main body, and having proceeded about four leagues into the country, were attacked, on the morning of the 13th, by a body of Spanish troops, and a bloody conflict ensued ; after which they retreated to the place of disembarkation, where about fifty of them obtained boats and re-embarked therein. TLiey were, however, intercepted among the keys near the shore by a Spanish steamer cruising on the coast, captured, and carried to Havana, and after being ex- amined before a military court, were sentenced to be publicly executed, and the sen- tence was carried into e'ffect on the 16th of August. * * » According to the record of the examination, the prisoners all admitted the offenses charged against them, of being hostile invaders of the island. At the time of their trial and execution the niain body of the invaders was still in the field, making war upon the Spanish authorities and' Spanish subjects. After the lapse of some days, being overcome by the Spanish troops, they dispersed on the 24th of August ; Lopez, their leader, was captured some days after, and executed on the 1st of September. Many of his remaining followers were killed, or died of hunger and fatigue, and the rest were made prisoners. '''Appenilix to British Case, vol. iii. Report of Neutrality Commission, p. 34. 250 TEEATT OF WASHINGXON^- But wbat gives a peculiar criminality to this invasion of Cuba is, that under the lead of Spanish subjects, and with the aid of citizens of the United States, it had its origin, vi^ith many, in motives of cupidity. Money was advanced by individuals, prob- ably in considerable amounts, to purchase Cuban bonds, as they have been called, issued by Lopez, sold, doubtless, at a very large diseount, and for the payment of which the public lauds and public property of Cuba, of whatever kind, and the fiscal resources of the people and government of that island, from whatever source to be derived, were pledged, as well as the good faith of the government expected to be established. All these means of payment, it is evident, were only to be obtained by a process of blood- shed, war, and revolution. None will deny that those who set on foot military expedi- tions against foreign states by means like these are far more cupable than the igno-. rant and the necessitous whom they induce to go forth as the ostensible parties in the proceeding. These originators of the invasion of Cuba seem to have determined, with coolness and system, upon an undertaking which should disgrace their country, vio- late its laws, and put to hazard the lives of ill-informed and deluded men. You will consider whether future legislation be necessary to prevent the perpetration of such ' ofifenses in future. walker's expeditions against MEXICO AND CENTEAL AMERICA. The spirit of reckless adventure which the G-overnmeot of the United States had been unable to repress in 1851 and 1852 found vent in the following year in another direction. The leader of the new enterprise was a citizen of the United States Walker's ex edi o^^^d Walkcr, who put himself at the head of a baud tion."«s»iMt Sco of " filibusters," as they were termed, and determined on and Central America, , -, i *■• , -i -m *■ ■ - • -¥- .*•-* i • 1853,1855,1857,1858, thc conouest of thc Mexican possessions in Lower Cali- 1859, and 186D. « . ^ ^ forma. The attempt was made in October, 1853, by an expedition from San Against Mexico, Franclsco. The filibusters seized the town of La Paz, killed seven of its defenders, and wounded others, and committed various excesses. They were re-enforced by another expedition, which sailed in the Anita from San Francisco in December, but were eventu- ally driven out of the country. The disturbed state of Central America made it the next tempting prey, and schemes were openly planned in the United States by so- called " transit" and " emigration" companies, for taking forcible pos- session of it. Walker was again put in command, and sailed from San Francisco on the 4th of May, 1855, with his filibusters. He arrived at Eealejo on the 15th of June, and, after various adventures, dur- [38] ing which he assumed the *title of President of Mcaragua, and was recognized in that capacity by the United States representa- tive, he was surrounded at Eivas by the native forces in May, 1857. Through the mediation of the commander of the United States'ship of war Saint Mary's, he was allowed to surrender unmolested, and to be conveyed away on board that vessel, with the remnant of his followers. On reaching the United States, he began to recruit for a fresh expedi- tion, and his preparations became so notorious as to call for the follow- ing circular to the district attorneys and marshals from General Cass, the United States Secretary of State : Department of State, Washington, September 18, 1857. From information received at this Department, there is reason to believe that law- less persons are now engaged, within the limits of the United States, iQ ftetoSaaSitiM Setting ou foot and preparing the means for military expeditions to to "revl™ '*"'!"'»'•« t>e carried on against the territories of Mexico, Nicaragua, and Costa peSns! ""' °'^' Eica, republics with whom the United States are at peace, in direotvio- lation of the sixth section of the act of Congress approved 20th April, 1818 ; and under the eighth section of the said act it is made lawful for the President, or such other persons as he shall empower, to employ the land or naval forces, of the United States, and the militia thereof, " for the purpose of preventing tlae carrying on 1853. COUNTER CASE OP GREAT BRITAIN. 251 «/ny sncli expedition or enterprise from the territories or jurisdiction of tlie United I am, therefore, directed by the President to call your attention to the subject, and to urge you to use all dne diligenee, and to avail yourself of all legitimate means at youtoommand, to enforce these and all otheP provisions of the said act of 20th April, 1818, against those who may be found to be engaged in setting on foot or preparing military expeditions against the territories of Mexico, Costa Rica, and of Nicaragua, so manifestly prejudicial to the national character, and so injurious to the national inter- ests. ' And you are also hereby instructed promptly to communicate to this Department the earliest information you may receive relative to such expeditions. In October, 1857, Lord l^Tapier, Her Majesty's minister at Washing- tOD, warned General Cass that he had been informed that more than 2,000 men had been enrolled for the invasion of Central America, funds had been subscribed to the amoifnt of $250,000, arms had been pur- chased, and overtures were being made to proprietors of shipping for the transport of the force to the scene of action.^ On the 10th of November, Walker was arrested at 'New Orleans on a charge of violating the neutrality laws of the United States. He was held to bail in $2,000 (about £400) to appear on the nth for examination, and he went to sea on the following morning. He embarked, with 300 unarmed followers, in the passage-boat from New Orleans to Mobile, and in Mobile Bay the party were met by a small steamer named the Hicks, and were by it transferred to the Fashion, a river vessel of greater capacity, with about fifty recruits, who joined them from the city of Mobile. The United States Government telegraphed to the Federal authorities at New Orleans to hire a steamer for the pur- suit of the expedition, and empowered them also to use the steam reve- nue-cutter (if there was one on the station) for the purpose. Lord Na- pier asked General Cass whether any armed steam-vessel of the national navy had been ordered to proceed on this duty, and was told in reply that there was no such vessel at the disposal of the administration. Walker succeeded in effecting a landing for his .band, who occupied Fort Castillo, but was himself intercepted by the commodore in command of a United States squadron, and taken to Aspinwall in a ship of war, whence he returned to the United States. It does not, however, appear that any legal proceedings were taken against him for his open defiance of the law. If so, they could not have been very efQcacious, as he set to work to prepare for another expe- dition on a larger scale, and, in May, 1858, the Presidents of Nicaragua and Costa Eica appealed to the protection of International law and of France, England, and Sardinia in an official decree : EiVAS, le \er mai 1858. Nous, presidents des deux r^publiques de Nicaragua et de Costa Eica : ConBi^d^rantqu'uuenouvelle invasion deflibustiersam^ricains menace j-iiibusteriu denonveaul'Am^fique Centrale au prejudice detoutes leslois divines et dition asainst cen- humain'es : ""' ^'^'""^ Consid^rant que I'Am&ique Centrale, 6puis6e par trois ans de guerre, est dans I'im- pnissance de se d^fendre sans le concours de I'Europe ; Consid&ant qu'uue deliberation commenoee des deux gouvernements de Nicaragua et Costa Eica, a mis solennellement les deux republiques sous la protection de la France, de I'Angleterre et de la Sardaigne ; Cousideraut, enfin, que le p^ril est imminent, et qu'il est urgent de la conjurer sans attendre Feffet des mesures que ces trois puissances proteotrices jugeront h propos de prendre : Donnons pleins pouvoirs k M. Felix Belly de redamer en notre nom le concours unoiediat de tous les batiments de guerre europeens qu'il ponrra rencontrer ; 'Correspondence respecting' Cen^tral America, Presented to Parliament 1860. Lord Napier to General Cass, October 9, 1857. 252 TREATY OP WASHINGTON. [39] *L6 obargeona sp^eialemeut de sollioiter I'envoi h San Juau del Norte d'uu oude deux batJments de la station franQaise des Antilles ; Et mettons les deux r^publiques de Costa Kioa et de Nicaragua et I'AmiSrique Cen- trale toute entifere sous la garantie du droit des gens europ^ens, et de la legislation sp^oiale 6dictiSe centre les pirates et les boacauiers. Lord Napier, in the note to General Cass, previously referred to, had commented on the ruinous conseqtienoes to those nations of the iilibas- tering attacks to which they were exposed from the United States. " It is obvious," he said, " that the most comprehensive reconciliatioti of Costa Eica and Nicaragua, accompanied by the re-establishment of the transit service by a respectable company, under the auspices of the United States or England, or both, would still be inoperative for the welfare of those countries if they should continue to labor under appre- hensions of invasion. It is superfluous to enlarge upon the calamities which the states in question have experienced from civil war and for- eign adventurers. Of the native population not less than 40,000 are computed to have perished in the conflicts of the last two years, while more than 6,000 strangers have sacrificed their lives in the prosecution of criminal or visionary aims. The destruction of property, the sus- pension of industry, the sacrifice of civilization, virtue, and happiness, the diffusion of wrong and suffering incidental to such a struggle, are more easily imagined than described." General Cass, in a note to Mr. Lamar, the representative of the United States in Central America, dated the 2oth of July, 1858, defended the action of the Government and its officers : That unlawful warlike enterprises bave been carried on from the United States,, composed of persons from diifereut countries, against the territory of Nicaragua, is not to be denied. But during the whole progress of these illegal efforts, the Gqyern- ment of this country has faithfully iDerformed the duty imposed upon it by the laws, as well through public proclamations against such enterprises as by giving the necessary directions to the proper officers to prevent their organization and depart- ure, as by invoking the action of tlie judicial tribunals, and also by the employment of its naval force. It is unnecessary to support these assertions by detailed proofs. They are as well known in Costa Eica and Nicaragua as here. Sometimes, indeed, owing to the defect of proof, it has not been in the power of the Government to arrest these expeditious ; but even when its exertions have not succeeded in preventing their departure, they have been fairly and generally successfully directed to prevent re-enforcements of men and material from reaching the adventurers who bad eluded the vigilance 6f the officers of the law. *»«»»*» But the presidents of these republics deal in specific facts as well as in more general allegations. They charge " that the Government of the United States has, according to official reports made to that of Costa Eica by its minister plenipotentiary at Wash- ington, declared it was utterly powerless to prevent past attempts by the filibusters, or to protect the neutrality of Central America, owing to the'insufliciency of the laws of the United States on this head." This accusation is wholly without foundation. No such declaration was ever made by the Government of the United States. It would have been an act at once of fatuity and of falsity. As to the difficulties in the enforcement of these laws, they are not denied, and have given much trouble to the Government in the efforts it has made to carry them into effect ; bat that they are powerless, or have i^roved so, no one, in or out of the United States, has a right to assert. The representatives of the Central American States maybe called on as witnesses that, in all cases where they have given information to the Government that military expeditions against that region were about to be undertaken, measures have been immediately adopted to prevent their success, and to arrest and puuish the offenders. Sometimes these efforts have failed, owing to causes not within the control of the Government, and sometimes they have been successful. General Cass at the same time denied that a fresh invasion waS pre- paring.i 1 Correspondence respecting Central America, presented to Parliament 1860, pp.219,220. COUNTER CASE OF GREAT BRITAIN. 263 Notwithstanding tMs assurance, Walker's ■preparations continued un- disturbed until lie was again on the eve of setting out with recruited forces, when, on the .30th October, President Buchanan issued a proc- lamation very similar to that published in the time of Lopez : ■ Whereas information has reached me, from sources which I cannot disregard, that certain persons, in violation of the neiitrality laws of the United States, are making a third attempt to set on foot a military expedition within their territory against Nica- ragua, a foreign state with which they are peace. In order to raise money for equip- ping and maintaining this expedition, persons connected therewith, as I have reason to believe, have issued and sold bonds and other contracts, pledging the public lands of Niaaragua and the transit route through, its territory as a security for their redemption and fuWUment. The hostile design of this expedition is rendered manifest by the fact that these bonds and contracts can be of no possible value to their holders unless the pres- [40] ent government of Nicaragua shall be 'overthrown by force. Besides, the envoy extraordinary and minister plenipotentiary of that government in the United States has issued a notice, in pursuance of his instructions, dated on the 27th instant, forbidding the citizens or subjects of any nation, except passengers intending to pro- ceed through Nicaragua over the transit route from ocean to ocean, to enter its terri- tory mthout a regular passport, signed by the proper minister or consul-general of the republic resident in the country from whence they shall have departed. Such persons, ■wjith this exception, " will be stopped and compelled to return by the same conveyance that took them to the country." From these circumstances the inference is irresistible tiat persons engaged in this expedition will leave the United States with hostile pur- poses against Nicaragua. They cannot, under the guise which they have assumed that they are peaceful emigrants, conceal their real intentions, and especially when they know in advance that their landing will be resisted, and can only be accomplished by . aa overpowering force. This expedient was successfully resorted to previous to the last expedition, and the vessel in which those composing it were conveyed to Nica- ragua obtained a clearance from the collector of the port of Mobile. Although, after a careful examination, no arms or munitions of war were discovered, yet, when they* airived in Nicaragua, they were found to be armed and equipped, and immediately ooinnaenoed hostilities. The leaders of former illegal expeditions of the same character have openly expressed their intention to renew hostilities against Nicaragua. One of them, who has already been twice expelled from Nicaragua, has invited, through the public newspapers, American citizens to emigrate to that republic, and has designated Mobile as the place of rendezvous and departure, and San Juan del Norte as the port to which they are bonnd. This person, who has renounced his allegiance to the United States, and claims to be President of Nicaragua, has given notice to the collector of the port of Mobile that 200 or 300 of these emigrants will be prepared to embark from that port about the middle of November. por these and other good reasons, and for the purpose of saving American citizens who iflay'have been honestly deluded into the belief that they are about to proceed to Nicaragua as peaceful emigrants, if any such there be, from the disastrous consequences to which they will be exposed, I, James Buchanan, President of the United States, have thought it fit to issue this my proclamation, enjoining upon all officers of the Government, civil and military, in their respective spheres, to be vigilant, active, and faiithful in suppressing these illegal enterprises, and in carrying out their standing in- structions to that effect ; exhorting all g^od citizens, by their respect for the laws, and their regard for the peace and welfare of the country, to aid the efforts of the public authorities in the discharge of their duties. The "standing instructions" which the officers of the Government ■were enjoined to carry out were the instructions to use " due diligence," in the circular of 1857 ; but notwithstanding the efforts which it is to be presumed they made, to ex,ercise it, a party of Walker's filibusters em- barked at Mobile in the sailing- schooner Susan, in December, 1858, with- out a clearance, on the pretense of being bound on a coasting voyage. An unsuccessful attempt was made by the revenue cutter to intercept them, but there seems on this, as on, the former occasion, to have been no ship of war with steam-power available to pursue her, and the party got oft" to sea acoording;ly, and the Susan was joined unmolested by the Fashion and the Washington, with military stores. The expedition afterward broke down from the Susan being wrecked. 254 TREATY OF WASHINGTON. Walker and his band then proceeded, in March, 1859, to In i859-'6o. Califoruia, whence they were said to have intended to make a descent on Punta Arenas; but this attempt was ilot carried into exe- cution, and Walker returned to his usual employment of organizing ex- peditions in the United States. In November, 1859, he, for the third time, eluded the " due diligence" of the Mobile authorities, and an expedition set sail once more from that port in his old vessel, the Fashion. The Fashion put back from want of stores, and some of the persons concerned in the expedition were ar- rested ; but there is no report of their having been punished. He started again in June, 1860, in the John A. Ta,\ lor, was met off Ruatan by another vessel with arms, and effected a landing on the Central American coaSt. His career was brought to a close by his being shot at Truxillo in Sep- tember, 1860. Fe.L,„raid,.g.i„« FENIAN KAIDS AOAINST CANADA. Canada. The first society formed in the United States for purposes hostile to "inshRepubUcaa trrcat Britain appears to have been the " Irish Kepublican Union, l&ia." UuiOU "' The course of affairs in Ireland prevented the " Irish Eepublicaa Union" from carrying out any projects which it may have entertained, Mas8»ci.u,ettBEmi- and it was succceded in 1855 by the "Massachusetts Irish grantAiJsociety,i855.23Qjjgj,j^jj(; AidSocicty," whlch hcld its first convention at Boston, on the 14th of August of that year, and under whose aaspices; secret societies were established in different parts of the United States. pho:nij sodet,, Thcsc secrct societies continued under various names,; ^'*'- ' until, in 1859, they were reconstituted as the Phoenix So- ciety. The civil war interrupted their progress, but in 1863 they agaia Fenian Brother- promiucntly appeared as the "Fenian Brotherhood" at a '"'°''- public meeting, held at Chicago, in November of that year. [41] *This meeting was reported to have been attended by 300 Meeting ai ciiica- delegates, represcntliig "circles," including twelve from eo in 1863, military and naval circles. The second annual congress of the " Fenian Brotherhood" was held At Cincinnati in ^t Oincinijati in January, 1865, when their president de- ^^- clared that they were " virtually at war" with England, and spoke of " this American institution called the Fenian Brotherhood."^ A congress of the Fenian Brotherhood met at Philadelphia on the i3Rae or Fenian ^''^'^ «*' Octobcr, 1865, aud Tcsolved upon the issue of '"'"''■• " Fenian bonds," and the establishment of the Irish republic at New York. The head-center, as'he was previously called, of the Brotherhood was now styled president of the Irish republic ; the execu- tive council entitled themselves " senators," with a presi- thf Mah're^biic M dcut; a houso was hired at a rental of $1,200; sefcretaries of the treasury, of war, &c., were appointed, and the Irish republic was declared to be founded at New York. The bonds had been prepared for the Fenians by the " Continental Bank-Note Company, New York," and were stamped " ofiice of the secretary of the treasury." They were decorated with some emblems and inscribed : It is hereliy certified that the Irish republic is indebted unto , or bearer, in the sum of (ten) dollars, redeemable sis months after the acknowledgment of the in- dependence of the Irish nation, with interest from the date hereof inclnsive, at six per cent, per annum, payable on presentation of this bond at the treasury of tlie Irislire- pnldic. ' Irish American, February II, 1865. COUNTER CASE OP GREAT BRITAIN. 265 As a measure of precaution against the possible hostile incursions of penians which were being constantly threatened, the Canadian govern- ment was compelled to call out for active service nine companies of the pioyincial militia in November, 1865, and to station them along the most exposed parts of the frontier.^ On the 2d of January, 1866, a Fenian convention was held at New fork, which lasted for nine days, and at which a detachment of the 99th State militia, numbering twenty-two men, are stated to have acted as sentinels. At a meeting at Buffalo, on the 2Cth of January, " General Sweeney pledged himself, if supported, that before next May he would conqner a certain territory upon which the Irish flag should be planted, and which shall be made the base of operations against England for the liberation of Ireland." " Colonel Eoberts promised, within ninety days, to have the green flag supported by the greatest army of Irishmen upon which the sun ever shone."^ At another meeting at Pittsburgh, Sweeney said : We have made large purchases of arms and war material. If you are prepared to stand by us, we promise that, before the summer sun kisses the hill-tops of Ireland, a ray of hope will gladden every true Irish heart, for by that Feman raij». time we shall have conquered, and got hostages for our brave patriots at home. The green flag will be flying independently to freedom's hreeze, and we will have a base of operations from which we can not only emancipate Ireland, but also annihilate Eng- laiid. If you support us, I pledge my name, fame, property, and life to this holy cause.^ The American newspapers were full of accounts of the ferment among the Irish. The New York World of March 5 said, "The ^^^^n^, Fieuian funds are disproportion ed to any pacific objects. They mean war or they meaii nothing. The honest contributors suppose they are furnishing the sinews of war. If the receivers of the money do not intend to apply it to this object, they are a set of sharpers, prac- ticing on the credulity of their followers, to levy a revenue for their own use. If they really mean war, if, as is given out, they contemplate the invasion of Canada, this is a serious business, which challenges the thoughtful attention of all Irishmen and all American citizens." That the Fenians did mean war was as plain as speech could make it. The " Irish American " reported that, at a meeting at Saint Louis, Gen- eral Sweeney had announced that " considerable purchases of arms and ■war materials had already been made, and that large contracts for the ^ame'had been entered into." Eoberts spoke without an attempt at disguise. " Now," he said, " there is but one outlet to Ireland by an armed tbrce, and that is on a section of this continent, where, too, the English power to-day rules supreme, and that section, if it does not come immediately beneath the influence of American power, must be made to come into the hands of the Irish people ; for the only way we can strike at English commerce is to have a place where we can have a government of our own, even before it should be recognized virtu- [42] ally on Irish soil. *Who will say that Andrew Johnson will not recognize the Irish republic, even if it should be only in name, as long as we have soil that we can claim as our own ? It is necessary to have some base from which we can send aid to our brothers who are struggling for liberty. We want a place from which we can send out ' Correspondence relating to the Feniau invasion, laid before the Canadian Parlia- ment, Jane, 1869, p. 139. 'New York World, January 27, 1866. 'World, February 20. 256 TBEATY OP WASHINGTON. privateers against English commerce ; and by tliat means, I think, we can take enough to maintain a government for fifty years very respect- ably." War meetings were also held at Portland, Lima, (Ohio,) Newport, Mil- ford, Waterford, and other places. Information having reached the Canadian government from many quarters showing that an inroad was imminent, and this information being supported by police reports of suspicious persons having been recognized entering Canada from the United States, as well as by open avowals at the Fenian public meetings, the executive council passed a minute on the 7th of March, calling out for duty 10,000 of the Canadian, velunteers. It was not until the end of May that the Fenian preparations were: completed. Stores of arms and ammunition had been placed at con- venient stations along the frontier, and the word had been given for an attack. On the 31st of May the Fenians began the march ; detachments of 200 and 300 men, calling themselves railway laborers on their way to the West, began to arrive at Buffalo and Saint Albans from the large towns. By the evening of that day a body of Fenians, estimated at upward of 1,000, had reached Buffalo, and, on the morning of the 1st- of June, 750 of them crossed over to Fort Brie, on the opposite bank of the Niagara liiver. What then followed is succinctly described in a dispatch from Lord Monck of the 4:th, published in the " correspondence respecting the recent Fenian aggression upon Canada," presented to, Parliament in February, 1867, which contains a full account of all that took place in Canada : GovBKNMBNT HOUSE, Ottawa, June 4, 1866. Sir : Eeferriug to my dispatch of the 1st of June, I have the honor to state, for yonb; information, that the body of Fenian conspirators who crossed the frontier from Bai- falo to Fort Erie on the morning of Friday, June 1, proved to be between 800 or 90Q men, and seem to have been well armed. I had previously had information that some such attempt would shortly be made, and a party of volunteers had been stationed at Port Colborne in anticipation of an attack. I have not yet had time to receive official accounts of the military operations,' hut- from telegraphic reports which have reached me I am able to give the foUowing state- ment of what occurred, which I think may be considered authentic. Immediately on the receipt of the intelligence of the invasion. Major General Napier pushed on by rail to Chippewa a force consisting of artillery and regular troops under Colonel Peacock, 16th regiment. Chippewa is about nineteen miles from Fort Erie, and there is no railway communication between the two places. On arriving at Chip- pewa, Colonel Peacock moved on in the direction of Fort Erie. On the morning of Saturday, June 2, the body of volunteers stationed as already mentioned at Port Col- borne left that place by rail, which runs parallel to the shore of Lake Erie, and went in the direction of Fort Erie as far as a place called Eidgway ; here they left the rail- way and proceeded on foot, apparently with the intention of effecting a junction with Colonel Peacock and his force. They came upon the Fenians encamped in the bush and immediately attacked them,, but were outnumbered and compelled to retire on Port Colborne. This occurred sp,me time on Saturday, 2d June. Colonel Peacock in the mean time was advancing in the direction of Fort Erie from Chippewa along the banks of the Niagara Elver, but was not able to reach the former place before nightfall. The Fenians, however, did not await his arrival, but recrossed the river during the night between the 2d and 3d June, to the number of about 750 men, and, as appears from the accompanying telegram from Mr. Consul Hemans, were immediately arrested by the authorities of the United States. I am happy to be able to inform you that the ofilcers of the United States Govern- ment appear to have exerted themselves to prevent any assistance being supplied to the invaders. I transmit copies of telegrams received on this subject from Mr. Consul Hemans. We.have sixty-five prisoners in our possession, who have been by my direction com- mitted to the common jail at Toronto to await trial. COUNTER CASE OF GEEAT BEITAIN. 257 Ifliink It is creditable, both to the military and militia anthorities in Canada, that tley werein a position within twenty-four hours after the invasion of the province, at a loint ot the enemy's own selection, to place opposite to him such a force as com- pelled his precipitate retreat without even risking an engagement. I shall not fail to send you more full particulars when I shall have received the offi- cial reports from the officers engaged, but the main facts are as I have stated them above. I have, &c., (Signed) MONCK. The vigilance of the authorities of the United States was not aroused until after the raid had occurred, when the raiders were stopped in their retreat into United States territory, and the party, now reduced by loss and desertion to 375, made prisoners, with O'Neill, their leader, and their arms taken from them. [43] *The stores of arms at Buffalo, Ogdensburgh, and Saint Albans, were also seized by the United States district marshals. On the 5th of June the arrest of the other Fenian leaders was ordered ; and on the 6th the President issued a proclamation stating that it had become known to him that certain evil-disposed persons had begun to set on foot, and had ijrovided and prepared, and were still engaged in providing and preparing means for a military expedition and enterprise, which expedition and enterprise was to be carried on from the territory and jurisdiction of the United States against British territory, and authorizing the United States military forces and militia to be employed "to arrest and prevent the setting on foot and carrying on the expedi- tion and enterprise aforesaid." On the same day on which this proclamation was signed, the Fenian prisoners at Buffalo were released on their own recognizances; and, on the 7th, O'Neill and the two other principal leaders were also released on bail. Another band of Fenians made a demonstration near Saint Albans, but retreated immediately on the appearance of a Canadian regiment. Several arrests were made at Saint Albans, and elsewhere; and Roberts, the president of the Fenian senate, and chief instigator of the raid, was taken into custody at New York. His examination, com- menced on the 11th ; on the 12th he was released on parole; and the dis- trict attorney eventually abandoned the prosecution, from want of evi- dence, with the intention of preferring an indictment before the grand jury. On the 23d July, the House of Eepresentatives of the United States passed the following resolutions : Seaolved, That the House of Eepresentatives respectfully request the President of the United States to urge upon the Canadian authorities, and also the British government, tlie release of the Fenian prisoners recently captured in Canada. Resolved, That this House respectfully request the President to cause the prosecu- tions instituted in the United States courts against the Fenians to be discontinued if compatible with the public interests. In pursuance of the second of these resolutions, the Attorney-Gen- eral instructed the district attorney at Buffalo to abandon the Fenian prosecutions there, and theiy were abandoned accordingly. The prosecution was also withdrawn in the cases of Sweeney, Spear, McMahon, and the other leaders of the Vermont frontier demonstra- tion, who had been arrested, but released on bonds of $5,000 after a day's detention ; and the intended indictment of Eoberts was dropped as a matter of course. In October the Government decided to return the arms which had been taken from the Fenians. The New York Times, of the 16th of October, gives an account of this transaction : 17 A— n 258 TREATY OP WASHINGTON. Buffalo, Monday, Ooiober 15. In puTsuanoe of orders issued by the Attorney-General of the United States, with the concurrence of the Secretary of "War, United States District Attorney Dart , gave instructions to General Barry, commanding the military district, to turn over the arms seized from the Fenians in this city, and at other points within the military district, upon the giving of a bond in double the value of the arms, to be approved by Judge N. K. Hall, that the arms shall not be used in violation of the neutrality laws. There were twenty boxes of arms seized here, valued at $2,500. This general order wa« procured at the intervention of Hon. James M. Humphrey, of this city, the cabinet taking the position that, as the Government had abandoned the prosecution of the Fenian officers and soldiers, it could not consistently hold their private property. Several thousand dollars' worth of arms held at Erie, Oswego, Plattsburgh, Maloue, Troy, and other places, will be turned over on the same terms. It is said that the arms will be sold to Santa Anna. P. O. Day and T. B. Gallagher signed the bond., These persons were well known as baving taken an active part in promoting the raid, Gallagher being editor of the Buffalo Fenian Vol- unteer. The bond which thej signed was, it is scarcely necessary to point out, a mere form, as it would have been utterly impracticable to identify the arms on another occasion. The alleged intention of selling the arms to Santa Anna, who was then said to be meditating a descent on Mexico, was a mere transparent pretext. The arms do not seem to have been all restored until the following year. This closes the account of the first Eenian raid on Canada, which had cost the Dominion the loss of an officer and six privates of the Queen's Own Volunteer Eifles killed, and four officers and twenty-seven men wounded, many of them mained for life. Besides this bloodshed there was the heavy cost to. the country in pensions, gratuities, and payment of claims arising out of the raid, as well as the serious charge on the treasury for summoning the volunteers, and the hiuderance to industry by such a disturbance of the country at a season of the year when agri- cultural pursuits were in full operation. [44] . *SECOND EAID ON CANADA. A renewal of the attack was threatened in the autumn of 1866, and Second ™id on Can- thc Canadian government was obliged to form a camp of nda,iB7o. voluutcers in the neighborhood of Niagara Falls from Au- gust to the second week in October. The expense of this camp, over and above the appropriated drill pay and loss to the industry of ithe I)rovince from the withdrawal of a large number of men from their occu- pations, amounted, in money, to $80,000.i During the year 1867 the Fenian Brotherhood were occupied in pro- moting Fenian disturbances in England and Ireland, in which Halpin, Burke, McCafferty, and others who had ct)me over from the United States for the purpose, were ringleaders. In 1868 the Fenians obtained from the Government the return of the arms seized at Saint Albans, consisting of about 1,300 muskets, and again proceeded to organize an expedition against Canada. In November, 1868, a Fenian congress was held in Philadelpbiaj.and O'Neill marched through the town at the head of three regiments of the so-styled Irish republican army, in green uniforms, numbering, as was reported, 3,000 men.^ ' During the year 1869 the Fenians were engaged in making fresh mil- itary preparations. On the 7th of February, 1870, O'Neill wrote to the circles that a congress of the Fenian Brotherhood was ordered^ to meet ' Canadian Parliamentary Papers. 2 Irish American, December 5, 1868. COUNTER CASE OF GEEAT BRITAIN. 259 ifl-New York on the 8tli of March, and desired them to send none but t'lie best and most reliable men, aiid if it be possible "to let them have a military record." The accounts received from various quarters of O'JSTeill's avowed in- teBtions, and the probability of some attack being made, rendered it mecessary for the Canadian government to be on the alert. On the 9th of April 6,000 militia. were called out, and two Canadian gan^boats armed, manned, and fitted out, to cruise along the water boundary. On the 12th of May, the governor-general, at the opening of the Ca- nadian parliament, said that " the information which reached my gov- ernment from many quarters as to the designs of parties styled Fenians, armed and openly drilled in various parts of the neighboring States, rendered it incumbent on me to apply to parliament to pass an act to suspend the habeas corpus act, as well as to call out an armed force for the defense of the frontier." " The vigorous steps resorted to, and the laudable promptitude with which the native militia responded to the call to arms, chilled the hopes of the invaders, and averted the men- aced outrage, so that I now entertain a sanguine hope that I shall not be placed under. the necessity of exercising the powers so intrusted to me." 'In the third week in May the Fenian detachments began to collect and move toward the frontier. The first batch arrived at Saint Albans on the evening of the 23d, and on the same day another party made their appearance at Malone. On the 24th the President issued a proc- lamation stating that it had come to his knowledge that sundry illegal military enterprises and expeditions were being set on foot within the territoTy and jurisdiction of the United States against Canada, and enjoining all officers in the service of the United States to prevent those unlawful proceedings, and to arrest and bring to justice those engaged in them. On the 25th O'lfeill's party made their attack from Franklin, a village near Saint Albans, but were at once repulsed and driven back across the frontier. O'lsTeill was then arrested by the United States marshal. A detachment of forty-five men of the Fifth United States Infantry arrived at Saint Albans in the evening to preserve order. ''The- end of the raid from Malone, in ^ew York State, was the same. The Fenians took up a position, strengthened by a breastwork of logs and a trench, just beyond the United States frontier, and, on being attacked, broke into a disorderly flight across it. Several of the leaders were arrested and a quantity of arms taken possession of by the United States authorities. Altogether Tr.ai n„d connc- tliirteen tons of arms are said to have been seized at the ^'•"">'^^^'"''<>^- two raids, and conveyed' to United States arsenals ; besides these a field-piece and numbers of rifles were abandoned on the scenes of action. Ou the 12th of July the trials of the Malone raiders took place ; two were condemned to two years' imprisonment and a fine of $10, and one to one year's imprisonment and a similar fine. On the 29th of July the Saint Albans raiders were tried; O'Neill was sentenced to two years' imprisonment and a fine of $10; another of the leaders to nine months' 'imprisonment, and a fine of $6; and another to six months' im- [45] prisonment and a fine of $1.- The *proceedings against two others were postponed. On the 12th of October O'Neill and his companions received an unconditional pardon from the President. On the day on which the pardon was granted the President published a proclamation warning evil-disposed persons that the law forbidding hostile expeditions against friendly states would donldTyTiie'preBi- for the future be rigorously enforced. 260 TREATY OP WASHINGTON. Whereas clivers evil-disposed persons liavfi, at sundry times, vrithin the territory or jn- risdiction of tlie United States, begun, or set on foot, or provided, or pre- 111^11011'.'''""'''"°°''' pired, the means for military expeditious or enterprises to be carried 011 thence against the territories or dominions of powers with whom the United States are at peace, by organizing bodies pretending to have powers of govern- ment over portions of the territories or dominions of powers with whom the United States are at peace, or by being, or assuming to be, members of such bodies ; by levying or collecting money for the purpose, or for the alleged .purpose, of using the same ia carrying on military enterpiises against suth territories or dominions ; by enlistirigor organizing armed forces to be used against such powers, and by fitting out, equippiog, and arming vessels to transport such organized armed forces to be employed inihostil- ities against such powers ; . And whereas it is alleged, and there is reason >to apprehend, that such evil-disposjed persons have also, at sundry times, within the territory and jurisdiction of the United States, violated the law thereof by accepting and exercising commissions to serve by land or by sea against powers with whom the United States are at peace, by enlisting themselves or other persons to carry on war against such powers; by fitting oulj^nd arming vessels with intent that the same shall be employed to cruise or comniit hostil- ities against such powers, or by delivering commissions within the territory or jiirfs- dictiou of the United States for such vessels, to the intent that they might be employed as aforesaid; i.. And whereas such acts are in violation of the laws of the United States in such case made and provided, and are done in disregard of the duties and obligations which all persons residing or being within the territory or jurisdiction of the United States owe thereto, and are condemned by all right-minded and law-abiding citizens : Now,therefore, I, Ulysses S. Grant, President of the United States of America, do hereby declare andxDroclaiin that allpersous hereafter found within the territory or jurisdiction of the United States committing any of the afore-recited violations of law, or any aim; ilar violations of the sovereignty of the United States for which punishment is pro- vided by law, will be rigorously prosecuted therefor, and upon conviction and sentence to punishment will not be entitled to expect or receive the clemency of the Exeoijtive to save 1hem from the consequences of their guilt, and I enjoin upon every offiper of this Government, civil or military, or naval, to use all efforts in his power to arrest, for trial and punishment, every such offender against the laws providing for the per- formance of our sacred obligations to friendly powers. On the 5th of October last, less than a year after his release and after Raid of 1871 this proclamation, O'Neill led a third raid against Canada, on the Pembina frontier, but was arrested by the United States troops, and this time met with entire immunity, being discharged on the ground that there was no evidence of his having committed any overt act within the United States territory. This closes the history of the Fenian raids. MILITAKT EXPEDITIONS IN AID OF THE CUBAN INSURTJECTION. The proclamation of October, 1870, which has been cited above; re- M.i.nr expeji ^^^'I'^'l ^^^t ouly to the proceedings of the Fenians, but' to tion!,"i'n^aij™'ii,a expcditioHS in aid of the Cuban insurrection. Mr. Eoberts, the Spanish minister at Washington, repre- sented to the United States Government that he had " seen the departure of various filibustering expeditions, in broad daylight and unmolested, from New York and other Federal ijorts, and had finally felt himself obliged, by the incomprehensible apathy of the authorities, to take-the initiative in order to prevent these repeated infractions of the neutrality laws."— (Mr. Eoberts to Mr. Fish, September 18, 1869.)i The principal expeditions referred to seem to have been those under- taken in the Grapeshot and Peritt, which landed parties of men and supplies in Cuba in May. The United States Secretary of State, in his reply, said that he " was forced to admit with regret that an unlawful expedition did succeed in ' Papers relating to Cuban affairs, presented to the House of EepresentativeSiiJfebra- ly 21, 1870, pp. 133-138. * , , COUNTER CASE OF GREAT BRITAIN. 261 stealthily escaping from the United States and landing on the shores of Cuba," but that it had escaped unnoticed by either the United States officers or, as he believed, by the agents of the Spanish government.! A further expedition was subsequently dispatched from New Orleans in the ship Oespedes, or Lilian, in October, 1869, to Cedar Keys, Flori- da, where she was met by a body of from 300 to 350 armed men, under command of a Cuban named Goicurria, who had sailed from IsTew York to join her in the steamer Alabama. The Lilian failed in landing the expedition on the Cuban coast, and was finally stopped and condemned for a breach of the British foreign-enlistment act at Nassau. [4:6] * A still more notorious vessel is the Hornet, or Cuba. The Hornet is an iron paddle-wheel steamer, originally a blockade- runner, of 820 tons. She was captured during the civil war, and taken into the United States Navy as a dispatch-boat, in which capacity she carried eight guns. She was sold in June, 1869, to Seiaor Macias, and it is believed retained her port-holes. After being refitted at Kensing- ton, near Philadelphia, she cleared for Halifax, but was detained for inquiry as to her intended proceedings. At Halifax she was again de- tained on the assertion- that she had heavy guns on board, bur, this proving incorrect, she was released, and sailed along the United States coast. Coals, supplies, and arms are stated to have been shipped on board, and she then put in at Wilmington, North Carolina, flying the Cuban flag. Here she was arrested for violation of the neutrality laws, and her commander, a United States citizen, and twenty-three others tried, and the vessel herself taken possession of by the United States authorities. ; The result of the trial was that the judge held that only two acts were shown to have been committed within the jurisdiction of the United States from which an intent to violate the neutrality laws could be in- ferred. These were the enlistment of a witness, D. D. Munro, and the reception of a cargo of coal in Long Island Sound. The commander and sixteen of the prisoners were discharged, and six others released' on bail.^ It does not appear that any further proceedings were taken against them. The vessel was then libeled in the admiralty court, but after some delay was returned to her former owner, Senior Macias, on bonds being given by Senator Chandler and General Butler that she would not be again used in violation of the neutrality laws. She, however, has since recommenced her career, and after taking in stores and, as is supposed, arms, at Aspinwall, succeeded in landing an expedition in Cuba in Jan- uary, 1871. She then took refuge at St. Domingo, and in January of the present year was convoyed to Baltimore, under the protection of a United States ship of war. It remains to be seen whether any legal proceedings will be instituted against her, and, if so, what will be their result. The views held by the United States Secretary of State with regard to the Cuban Junta, at ^ew York, by whom these expeditions were concerted, were thus expressed in a dispatch to the United States min- ister at Madrid, in January, 1870 : "Had the Cabau Junta," lie says, " expended their money and energy in sending to the insurgents arms and tounitions of war, as they might have done consistently with our own statutes, and with the law of nations, instead of devoting them to deliberate 'Paipers relating to Cuban affairs, presented to the House of Representatives, Febru- ary 21, 1870, pp. 133-138. 'Uuited States vs. The ofaoels of the steamship Cuba, reported in Wilmington Jour- naJ, October 31, 1869. 262 TREATY OF WASHINGTON. violation of tlie law of the United States, and liad they, in lieu of illenally employing persons within the dominions of the United States to go in armed bands to Cnba, pro- ceeded thither unarmed themselves to take personal part in the strnggleforindependenQe, it is possible that the result would have been different in Cuba, and it is certain that there would have been a more ardent feeling in the United States in favor of theii? cause, and more respect for their own sincerity and personal courage.'" And in a letter to Mr. Eoberts, dated the 28th of December, Mr. Pish pressed upon Mr. Eoberts the necessity of legal evidence being furnished in order to enable the local authorities to act : The undersigned takes the liberty to call the attention of Mr Lopez Eoberts to the fact that a district-attorney of the United States is an ofScer whose duties are regu- lated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal process, founded not npon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a consul, but upon proof submitted according to the forms required by law.^ Her Majesty's government do not adduce these instances of recent violations of the neutrality laws of the United States, the facts of which are notorious, in any spirit of accusation or recrimination. But the atten- tion of the arbitrators has been called to the long series of illegal expedi- tions which have been organized and dispatched from the United States against the territories of friendly nations during the last twenty-two years, as instances of the flagrant manner with which the laws of the United States have been evaded, as shown by the messages of successive Presidents, in spite of what Her Majesty's government assumes to have been the intentions and efforts of the executive authorities. From these multiplied examples the arbitrators may be enabled to form an estimate of the measure of "due diligence" in executing laws for the prevention of such enterprises which the United States have considered sufficient in their own authorities, and could not, therefore, reasonably expect to be exceeded by the authorities of other countries. [47] *EECAPITULATION. Out of this retrospect, which has been rendered necessary by the state- ments introduced into the case of the United States, the ed''to'byX' United followiug obscrvations arise: ^'°""- 1. The argument of the United States, that a neutral gov- ernment is not only bound to exert reasonable care for the purpose of preventing violations of its neutrality, but is bound to apply to the vari- ous duties which purport to be enumerated in the three RecpituiHtion. rulcs, pursucd in their minutest details, and pushed even beyond the natural meaning of the words employed, a diligence the most energetic, vigilant, and exact, finds (whether it be true or not) no support in this history. However rigorously the United States may now be disposed to estimate the obligations of other powers, they have not so construed their own. 2. The argument that compensation is due, as of right, for any loss sustained in war by a belligerent, which may be traced to a relaxation of diligence on the part of neutral powers in preventing violations of neutrality, whether it be sound or not in itself, is not supported by any precedent adduced. The United States have never paid, nor have they ever admitted a liability to pay, such compensation. 3. Where compensation has been claimed in such cases, it has been ' Papers relating to Cuban affairs, presented to the House of Eepresentatives Feb- ruary 21, 1870, p. 69. * Papers relating to the foreign relations of the United States transmitted to Con- gress with the annual message of the President, December 4, 1871, p. 786. COUNTER CASE OF GEE AT BRITAIN. 2^3 limited to the values of ships and cargoes captured by vessels unlaw- fully fitted out and armed ; and the claim has never been admitted, except when such prizes have been brought by the captors within the jurisdiction of the neutral power. 4. The position that a neutral government is under an obligation to • seize and detain any armed ship entering its ports, even though com- mi^ioned as a public ship of war, which has received any equipment or auy adaptation for war within the jurisdiction of the neutral, is equally unsupported. There is no trace of such an obligation. The American Government did indeed, in 1793, direct that privateers which had vio- lated its neutrality should not have asylum in its ports. But even this '(.which is a very different thing) it acknowledged no obligation to do ; and the exclusion (which does not appear to have been extended to public ships of war) seems to have been by no means steadily enforced. , Finally, Her Majesty's government cannot forbear to remark that the history of this subject is from first to last a history of unlawful enter- prises originated either in the United States or by citizens of the United States in other countries. Great Britain, Spain, Portugal, Mexico, the Central American Republics, Cuba, and Canada, have from time to time been harassed by privateers fitted out in the ports of the Union, or hos- tile expeditions organized and assembled within its territory. And when, in 1861, civil war broke out within the Union itself, it was by American citizens that the plan was formed to abuse, for the more effectual prosecution of that war, the soil and waters of a neutral and friendly nation. Baffled, in the great majority of cases, by the restraints of the law and the watchfulness of the Executive, they contrived, in a .very few, to elude those restraints. They procured ships, transported them to distant seas, armed and manned them there, and employed them in cruising against their countrymen, not, indeed, for the sake of plunder or profit, but to assist the people of their own States in a strug- . gle for independence. The Southern States have returned to their allegiance. They have been treated with clemency, and no attempt haS/ been made to exact from them, by fines or forfeitures, pecuniary reparation for the losses which the Government and the rest of the peo- ple of the United States have sustained through their means. The acts wMch they directed and authorized, when in arms against the Union, are now, on behalf of the nation of which they form an important part, made :the subject of complaints and demands against Great Britain. Her Majesty's government has been ready and willing to give the United States all reasonable satisfaction by submitting the question to the award of an impartial tribunal. But it is surely no unjust observation that, if ever there was a case in which a power, deeming itself aggrieved, might have been expected to. state its complaints with moderation, and to make ample allowance for administrative difficulties and unavoidable deficiencies of proof, that occasion is the present and that power is the United States. [48] *P A R T IV, VARIOUS COMPLAINTS OF THE UNITED STATES AGAINST GREAT BRITAIN ; TRAFFIC IN MUNITIONS OF WAR. The fourtli part of the Case of the United States contains a genera^ PiKTiv— Tari- and comprehensive statement of all the complaints which S,"e vlher°sdl tlisy conceive themselves to have against Great Britain. It apin.t Great Brit- ^jjj jjg found, OH cxamiuation, that these complaints are " Traffic in mani- of two classBS. A Small numbcr of them have reference uoJoc^«. ^Q ^ijg vessels enumerated at p. 320 of the Case, or some of them, and charge or suggest against Great Britain certain failures of duty in respect of those vessels. A much larger number have no refer^ ence whatever to those vessels, and do not charge or suggest any failure of duty in respect of tliem or any of them. The former class are within the sc(fpe of the reference to arbitration ; the latter are not within it. In the Case of the United States, however, these various complaints have been connected together in a narrative which draws no distinc- tion between those which are and those which are not relevant to the questions at issue. Analyzing the narrative, we find that it is in substance as follows : ' The government of the Confederate States sent to Eagland, to Nassau, to Havana, and other places, agents instructed to purchase arms and munitions of war, with other things of which the Confederate States stood in need, and to procure ships suitable for warlike use. The per- sons sent to England on this errand were supplied with funds by remit- tances of specie and consignments of cotton, all necessary payments being made by drafts on a mercantile house in Liverpool, who were "depositories" of the funds. The whole southern coast being block- aded, it was necessary for the agents to send their purchases in such a manner as to elude the blockade. The British islands of New Provi- dence and Bermuda offered, from their geographical position, peculiar facilities for. the purpose, and advantage was taken of these facilities, large quantities of goods being sent thither from England, and for- warded thence to different confederate ports. Some of the ships em- ployed in this trafBc were the property of the confederate government ; some others were chartered by its agents. The colonial authorities, it is affirmed, encouraged the trade, and placed obstacles in the way 'of the United States cruisers which were endeavoring to suppress it. It is added that the difficulties thus created were enhanced by an order of the British government, which directed that vessels of- war should not be admitted, unless in case of distress, to the ports of the Bahama Islands. Meanwhile the confederate agents contracted with ship-build- ers in England and Scotland for ships suitable for war to be built to order, and purchased some others in the market. Three or four of these vessels they succeeded in sending to sea; the remainder were stopped. They also purchased guns, munitions of war, and ships' stores, and dispatched them to various places — the Azores, the Madeira Islands, COUNTER CASE OF GREAT BRITAIN. 265 one of the Bahamas, the coast waters of France — -where they were put on board of the vessels. English seamen were induced to serve in them, and were paid their wages through the iustrumeutality of the Liverpool house. The British government required, before it would order the seizure of a suspected vessel, evidence which could be produced in a court of justice. It declined during the war to propose to Parliament any alteration of the law applicable to such ca>ses, stating that the law was 'safflcieut, and that where it had failed the deliciency had been in timely proof that the acts complained of were within the law. This is the substance of the complaints of the United States, stated in simple terms. Some of them are true, some erroneous, and the greater part irrelevant to the questions referred to the tribunal. It is the right of Great Britain to decline absolutely any discussion on the question whether, in taking no steps to prevent the conveyance of arms and munitions of war from British or colonial ports to the Con- federate States, or in any matter whatever connected with that trafSc, her government failed to discharge any international duty. But [49] that *something should here be said on this subject may perhaps he convenient to the arbitrators. . In the case presented to the tribunal on the part of Great Britain, the following propositions were laid down as agreeable to the principles of international law and the practice of nations : A neutral government is bound to exercise due diligence, to the intent that no place ■ within its territory he made use of by either belligerent as a base or point of departure for^a military or naval expedition, or for hostilities by land or sea. . A neutral government is not, by force of the above-mentioned obligation or other- wise, bound to prevent or restrain the sale within its territory, to a belligerent, of arti- cles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent pur- chaser, or the exportation of such articles from its territory for sale to, or for the use of, a belligerent. Her Majesty's government haS hitherto believed that, on this subject, no difference of opinion existed between Great Britain and the United States. By no power has the principle been asserted so strongly, unre- servedly, and consistently as by the United States, and no nation has more freely acted upon it.^ fItjOan hardly be necessary to cite examples. The emphatic enunciation of this doctnne in Mr. Jefferson's letter to Mr. Hammond (15th May, 1793) has been often referred to : "The purchase of arms and military accouterments by an agent of the French gov- ernment, in this country, with an intent to export tbem to France, is the subject of affltither of the memorials; of this fact we are equally uninformed as of the former. Our citizens have been always free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and distant couutries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupations. It ia satisfied with the external penalty pronounced in the President's proclamation, that of oohfiscation of such portion of these arras as shall fall into the hands of any Of the belligerent powers on their way to the porta of their enemies. To this penalty our . citizens are warned that they will be abandoned, and that even private contraventions may work no inequality between the parties at war, the benefit of them will be left equally free and open to all." — (Appendix to British Case, vol. v, p. 242.) It will be observed that this was subsequent to a proclamation issued by the Presi- dent, in which conveyance of contraband to a belligerent was specified as among the acts involving a liability to "punishment or forfeiture under the law of nations," and notice was given that prosecutions would be instituted against all persons who should, within the cognizance of the courts of the United States, " violate the law of nations with respect to the powers at war or any of them." It was written in answer to a representation by the British minister to the effect that he had "received informa- 266 TREATY OF WASHINGTON. These propositions are true without any qualification, and they have long been accepted and acted upon as true without qualification by the maritime powers of Europe and of the American continent. Each bellig- erent is at liberty to profit by the traffic, so far as it may be of use to him; he is free also to repress it, if he can, so far as it is of assistance to his enemy ; and for this latter purpose he is armed by the [50] custom of nations *with exceptional powers, which exist onjy during the war, the power to detain, search, and capture on the high seas the vessels of nations with which he is at peace. The justifl^ cation of the usage which intrusts these powers to the belligerpnt may- be found in the fact that the repression of the trade, so far as it mili, tates against his interests, is abandoned to him, and is not a duty of the neutral. ,(; It is perfectly immaterial in the view of international law whether tjie contraband goods are purchased in the neutral market by persons who resort thither for the purpose, or are shipped to order, or consigned, for sale to persons in the belligerent country. It is immaterial whether the purchases are effected by agents of the belligerent government or by private speculators. It is immaterial whether the ownership of the vessels in which the transportation is effected is belligerent or neutral; the only differences are that, in the former case, the neutral supplies the merchandise alone, while in the latter he supplies both merchandise and carriage, hazarding the chances of detention and capture ; in the former the cargo is liable to condemnation as enemy's goods in an enemy's ship ; in the latter as contraband goods in the ship of a neutral. It is imma- terial whether the ship which conveys them is chartered or owned by private persons or by the belligerent government itself, provided she he tion from various respectable quarters, that a considerable quantity of arms and mili' tary accouterments, -which an agent of the French government lias collected and pur- chased in this country, is no-w preparing to be exported from New York to France." "The secrecy -with -which a transaction of this nature is generally conducted, ha« rendered it impossible for the under^gned to procure precise proof of it. Entertaining, however, no doubt of the existence pf the fact, he esteems it his duty to lay it imme- diately before the Executive Government of the United States, -which he trusts -will deem it more expedient (if any measures for the pi-irpose can be devised) to prevent the execution of this contravention of the President's proclamation than to expose vessels belonging to its citizens to those dangers and difficulties -which may result from the circumstance of their carrying articles of the description above mentioned." (Mr. Hammond to Mr. Jefferson, May 8, 1793.) — Appendix to British Case, vol. v, p. 241. Mr. Hammond's cautious latiguage shows that he understood the effect of a proolar mation of neutrality as calling attention to the existing prohibitions, not as creating new ones. The Government of the XJnitfid States apparently do not understand this. He appears to have accepted Mr. Jefferson's answer without demur. The minister of the Mexican Republic, in 1862, when Mexico was invaded by a French army, urged the American Government to prohibit the export of mules and wagons -which French agents were purchasing for the use of the expedition. Mr. Seward re- fused, citing the following authorities : Instructions to collectors of customs, issued hy Alexander Hamilton, Secretary of the Treasury, August 4, 1793. " The purchasing and exporting from the United States, 6?/ way of merchandise, articles commonly called contraband, being generally -warlike instruments and stores, is free to all parties at war, and is not to be interfered with. If our own citizens undertake to crrry them to any of these parties they will be abandoned to the penalties which the laws of war authorize." — (American State Papers, Foreign Relations, vol. 1, p. 141.) Mr. Wehster to Mr. Thompson, July 8, 1842. "It is not the practice of nations tp undertake to prohibit their own subjects from trafiScking in articles contraband of war. Such trade is carried on at the risk of those engaged in it under the liabilities and penalties prescribed by the law of nations or particular treaties."— (Webster's Works, vol. 6, p., 452.) COUNTEE CASE OF GREAT BRITAIN. 2G7 employed only for carriage and not armed for war. Nor, again, does the proximity of a neutral port, whence the trade is carried on, to either belligerent country^ make any difference in the duties of the neutral gorernment. Kor does it make a difference that the coast or harbors of feither helligerent are blockaded, more or less effectively, by the other. As the neutral government is under no obligation to prevent breaches of blockade and the export of contraband when the transactions are dis- tinct, so it is under no obligation to prevent them when the transactions affe combined. ' It is necessary to state this principle firmly and clearly ; otherwise it would be at the mercy of every powerful belligerent. There never was a war in which some special circumstances might not be pleaded and special reasons given for setting it aside in the interest of one party or the other. AEMS AND MILITARY SUPPLIES PURCHASED BY THE UNITED STATES. At the commencement and during the course of the war both bellig- erents resorted to Great Britain for supplies of arms and military mate- rial, of which both were in need. The wants of the Government of the tJnion appear to have been at first even more pressing than those of its adversaries, since the Government which preceded that of Mr. Lincoln had removed, it is said, considerable quantities of arms from the north- ern arsenals to those in the Southern States. [51] On this subject the Secretary of War at Washington, in his Mr. Webster's Instructions of July 8, 1843, cited in Gardner's Instructions, American Inter- " ; national Law, page 552. "That if American merchants, in the way of commerce, had sold munitions of war to Texas, the Government of , the United States, nevertheless, were not bound to pre- "^ent it, and could not have prevented it without a mailifest departure from the pfinci- E& of'nelitrality." president's message, 1st session SUh Congress—FranTclin Pierce, President; WilliamL. Marcy, .,.; . Secretary of State. ■ "The laws of the United States do not forhid their citizens to sell to either of the beUigexent powers articles contraband of war, or take munitions of war or soldiers on hoard their private ships for transportation ; and although, in so doing, the individual citizen exposes Kis property or person to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Govern- ment."— (Appendix to British Case, vol. v, p. 332.) The passage last cited proceeds as follows : ' "Thus, during the progress of the present war in Europe, our citizens have, without lational responsibility therefor, sold gunpowder and arms to all buyers, regardless of ; #6 destination of those articles. Our merchantmen have been, and still continue to be, largay' employed by Great Britain and France in transporting troops, provisionSj and munitions of war to the principal seat of military operations, and in bringing home the sick and wounded soldiers ; but such use of ourimercantile marine is not interdict- ed either by the international or by our municipal law, and, therefore, does not com- promise our neutral relations with Russia." that the United States still adhere to this principle was abundantly proved in the eoursBjOf the recent war between France and Germany. It is in the power, of course, of a neutral government to prohibit the exportation of contraband, if it think fit, and if such a prohibition be within the limit of its consti- tutional authority, but even such a prohibition gives no right to either belligerent. "Per Verkauf an und fiir sich allein kann zwar von einem neutralen staate selbst iii^WAngehorigenuntersagt werden; allein durch die Ueberschreitung dieses Verbo- tes'macht man sich nnr dem eigenen staate verantwortlioh ; der kriegftihrende selbst hat seinerseits keiue Befiigniss die contravention zu ahnden."— (Heffcer, section 161, fifth edition.) 268 TREATY OF WASHINGTON. report to the President on the 1st of July, 1861, made the following statements : Previous to the early part of last year tlie Government had a supply of arms and munitions of war sufacieut for any emergency ; but through the had auppS '"h'n'S faith of those intrusted with their guardianship, they were taken from by the United states, ^.j^^jj. ^^g^^j. depositories and distributed through portions of the coun- try expected to take part in the contemplated rebellion. In consequence of the serious loss thus sustained, there was available at the commencement of the outbreak a much less supply than usual of all kinds. But through the zeal aud fiotivity of the Ordnance Bureau the embarrassment thus created has been in a great measure overcome. As the capacity of the Government armories is not equal to the supply needed, even after having doubled the force of the Springfield armory, the Department found it ab- solutely necessary to procure arms to some extent from private manufacturers. * * * Some patriotic American citizens resident in Europe, fearing that the country might not have a sufiScient supply, purchased, on their own responsibility, through co-opera- tion with the United States ministers to England and France, a number of dmproved cannon and muskets, and at your instance this Department accepted the drafts drawn to defray the outlay tlius assumed. A perfect battery of Whitworth six 12-pounder rifled cannon, with 3,000 rounds of ammunition, the munificent donationof sympathizirig friends in Europe, has also been received from England.' ' " In his report of 1st December in the same year, the same minister said: As stated in my last report, at the commencement of this rebellion the Government. found itself deficient in arms and munitions of war, through the bad faith of those in- trusted with their coutrol during the preceding administration. The armory at Har- per's Ferry having been destroyed to prevent its possession and use by the rebels, the Government was compelled to rely upon the single armory at Springfield and upon private establishments for a supply of arms. » « * After having made contracts for arms with tlie private establishments in this country, it was deemed necessary by the President, to insure a speedy and ample supply, to send a special agent to Europe with funds to the amount of $2,000,000 to purchase more. I am gratified to state that he has made arrangements for a large number of arms, part of which have already been delivered. The remainder will be shipped by successive steamers until all shall ha^S; been received.^ A commission was appointed by the Government of the United States, in March, 1862, to audit the contracts made by the War Departmenli for ordnance, arms, and ammunition, and in their report, which was laid before Congress, the following remarks occur on the steps taken to purchase arms abroad : First, as to foreign arms : it was of course absolutely necessary to resort to these in equipping within a few mouths more than 500,000 men, and it was impossible in all the workshops of Europe to have had arms manufactured as rapidly as our public ne- cessities required. Under such circumstances prices naturally rose, and inferior' (often second-hand) arms had to some extent to be purchased. But these difficulties were greatly aggravated by the lack of system which prevailed. The States aud the General Government entered the market together as rival purchasers, and thus the members of the same national family bid directly against each other. The folly of this is the more remarkable when it is remembered that these arms bought by the States were, in fact, for the nse of the General Government, and will no doubt, in the end, be paid for by it. The General Government itself employed numerous agents not acting in unison, and often becoming, therefore, competitors of each other. A few of these made purchases directly for the Government : the greater number sprang np in the shape of "middle men," to whom, though not dealers in arms nor skilled ifi their value, contracts were awarded upon their own terms, only to be sublet to the actual importers. * » » « jn regard to a considerable portion of these foreign arms, Government inspection was permitted in Europe before shipment, but so utterly inadequate and so incompetent was the force assigned to this duty that it became a mere empty form devoid of all utility or protection. Of this and other negligences and imprudences, the practical result has been that a large proportion of our troops were armed with gnus of a very inferior quality ; that tens of thousands of the refaSa arms of Europe are at this moment in our arsenals, and thousands ruore still to arrive.^, Lord Lyons wrote to Lord Russell on the 4th of May, 1861 : " Mr. 1 Appendix to British Case, vol. vi, p. 151. 2 Ibid., p. 164. COUNTER CASE OF GREAT BRITAIN. 269 Seward said to me on the 1st instaut that perhaps he otiffht to have told me before that the CTnited States Government had sent agents to England to purchase arms. He added that the agents would go on to Irance for the same purpose." i ,lt will be seen that in the report of Captain Huse, who is stated to have- been the confederate agent sent to Europe for a similar purpose he mentions the United States agents and the agents of individual Northern States as his most formidable competitors. " Their orders " he says, " appear to have been unlimited, both as regards price [52] and *quantity, and they paid cash in every instance."^ Further on he mentions that " the United States agent, in this case the minister, Mr. Dayton, has purchased, within a few days, 30,000 old flmtlock muskets, which are to be altered before they are sent to the United States." The purchases of small arms and other military stores in England were partly made by authorized agents acting under the direct orders of the Government of the United States, partly by agents acting under the orders of the governors of particular States, and partly by mercan- tile firms, acting, however, in some cases under the authority of the Federal or States Government. Colonel Thomas, of the United States Army, was in England during the war, and acknowledged that he had come over to superintend the puTchases of military stores. He sought and obtained much informa- tion on this subject at the Government establishment at Pimlico. It appears, however, that the agent mentioned in the report of the Secre- tary of War was a Colonel G. L. Schuyler. He was, in July, 1861, appointed by the President of the United States " a duly authorized agent to purchase a^-ms in Europe for the War Department." He re- ceived his instructions from the Secretary of War, with a memoran- dumfrom General J. W. Ripley, of the Ordnance Department at Washington, specifying the arms" to be purchased, viz: 100,000 rifle- muskets with the bayonets, 10,000 cavalry carbines, 10,000 revolv- ers, and 20,000 sabers.' The financial arrangements for these pur- chases were to be made by the Secretary of the Treasury with Messrs. Baring, financial agents for the United States in London, and a credit of $2,000,000 was, as has been seen, appropriated for the pur- pose. The money was placed at the order of Colonel Schuyler and the United States ministers in France and Belgium.^ The arms were to be consigned to the care of Mr. Hiram, Barney, collector of the port of New York. Colonel Schuyler proceeded to Birmingham, where, as appears from a report subsequently made by him in April, 1862, to the Secretary of War, he purchased of the Small Arms Association 13,129 long Enfield rifles and 1,880 short Enfield rifles with saber bayonets— in all, 15,000, all of which arrived safely in the United States, consigned as directed in his instructions. He also made arrangements there with the American house of Van Wart, Son & Co., who had zealously co- operated with him to procure arms for delivery early in January, and who, between May, 1861, and February 15, 1862, ordered from the Bir- mingham Small Arms Company, and forwarded to Messrs. Baring, and Messrs. George Wright & Co., at Liverpool, for shipment to the United States, an aggregate amount of 26,540 rifles. From England he pro- ceeded to the Continent of Europe, where he continued his purchases; and in a letter from the War Department at Washington to General 'Appendix to British Case, vol. vi, p. 151. s A-ppenclix to Case of United States, vol. vi, p. 34. ^Appendix to British Case, vol. vi, p. 153. 270 TKEATY OF WASHINGTON. Eipley, of tlie 18th November, 1861, information is said to have been received from him that the steamer City of Washington would leave Liverpool on the 6th of ISTovember, having on board 12,955 Enfield rifles from Dresden, 500 sabers, 800 revolvers, one case of bullet-molds. The steamer Saxonia, leaving Southampton on the 6th, was to bring 7,000 cavalry carbines and 500 sabers; the steamer Fulton, (November 12,) 20,000 percussion rifles; the steamer leaving Hamburg on the 17th of November, 30,000 more.i The War Department had written repeatedly and pr^ssingly to Colonel Schuyler on the subject of his mission. On the 2d of September ;tbe Secretary wrote: "We need arms; secure them at any reasonable price and forward without delay."^ Again, on the 16th, "I trust that notbinjf. will delay a prompt delivery of the arms which you have purchased. You will please express my acknowledgments to Messrs. Baring, Brothers & Co., for their prompt and patriotic action in facilitating your operations."^ On the 8th of October, "I notice, with much regret; that there are no guns sent. * * * * Prompt and early shipments of guns are desirable. We hope to hear by next steamer that you have shipped from 80,000 to 100,000." And, on the 21st of October, "the Department earnestly hopes to receive by the Arago the 12,000 Enfield rifles, and the remainder of the 27,000, which you state you have 13urchased, by the earliest steamer following. * * * * Could you appreciate the circumstances by which we ^re surrounded you would readily understand the urgent necessity there is for the immediate delivery of all the arms you are authorized to purchase.'" In the summer or autumn of 1861 Mr. J. R. Schuyler and Mr. Tomes, of the firm of Schuyler, Hartley & Graham, of New York, visited Bir- mingham, and, after communicating with the principal rifle, bayonet, and sword manufacturers there, gave orders for as many of those articles as their respective manufactories were capable of sup- [53] plying, *the goods to be paid for on delivery to them at a place to be subsequently named, or on shipment. Messrs. Schuyler and Tomes made no concealment of the fact that these arms were destined for the American Government, and they intimated their intention of continuing unlimited orders for a period of two years. They took warehouses in Birmingham for the receipt of the arms when completed, and shipped them through the agency of Messrs. Baring Brothers land Messrs. Brown, Shipley & Co., of Liverpool. It appears from tbe returns made to Congress of 9,rms purchased by the United States War Department up to December, 1861, that 8,650 rifles and 232 revolvers of English manufacture had at that time been supplied by Messrs. Schuyler, Hartley & Graham ; but Mr. Schujier is also believed to have acted as agent for the purchase of arms for the State of New York. Messrs. Schuyler and Tomes were soon followed to Birmingham by a Mr. Lockwood, of New York, who had entered iuto a contract for the supply of rifles, bayonets, and swords to the War Department at Washington. He also gave unlimited orders for such articles, acting, however, to some extent, in concert with Messrs. Schuyler and Tomes, and shipping the goods through the agency of the same houses at Liv- erpool. The effect of these orders was to raise the prices in the Birming- ham gun-trade to the extent of 20 per cent.; indeed, the price of rifles rose from 52s. to 75s. each.* 1 Appendix to British Case, vol, vi, p. 162. ^ Ibid., p. 1.54. sibid., p. 155. ■« Ibid., p. 158. COUNTEE CASE OF GREAT BRITAIN. 271 On tlie 4th of December, 1861, it was deemed expedient under ciroum- stances then existing, as a temporary measure of precaution to prohibit altogether, by proclamation, the exportation of arms and munitions of war, and Messrs. Schuyler and Tomes countermanded their orders in consequence, the former proceeding to Liege, the latter remaining at Birmingham. The proclamation was practically revoked in the course of January, and formally on the 7th of February, 1862. While it was in force it, of course, operated equally against both belligerents. It appears from the report of the commissioner on contracts for arms that, by the concurrent action of the Secretary of State, Assistant Sec- retary of War, and Secretary of the Treasury, M. Laumont Da Pout, of the firm of E. J. Du Pont & Go., of Wilmington, Delaware, had twice visited England, furnished with a credit of £82,700 7s. Id. upon Messrs. Baring Brothers, and purchased and shipped saltpeter at a cost of £79,699 16s. 8d.^ The large purchases of saltpeter which were made toward the close of November, 1861, drained the whole English market, and it was thought prudent to issue a proclamation prohibiting the ex- portation of that article, which was subsequently revoked at the same time as that respecting the export of arms. Mr. Adams wrote to Mr. Seward on the 24:th of January, 1862 — " The only event of any impor- tance connected with American affairs that has happened during the last week is the revocation of the orders prohibiting the exportation of- airms and munitions of war. This will release the large quantity of salt- peter in the hands of parties here, and will probably renew the activity of the confederate emissaries in forwarding supplies to the insurgents."^ Mr. Seward replied, on the 13th of February — "It affords us pleasure to 'know that the inhibition against the exportation of saltpeter, which was so unnecessary, has been rescinded.'" Mr. P. B. Crowninshield is understood to have acted as agent for the States of Massachusetts and Ohio. His address in Loudon was at the office of the United States consulate, Eo. 67 Gracechurch street. The 'Birmingham Small-Arms Company forwarded by his order 16,400 rifles to the care of Messrs. Baring Brothers, at Liverpool, for shipment to the United States, between the months of May and December, 1861. Mr. Crowninshield also ordered large quantities of arms and 10,000 sets of miUtary accouterments from firms in London, which were forwarded 'and shipped from Liverpool and Southampton.* Besides these purchases many were made by private firms, who sold or contracted to supply arms to the Government of the United States. On the 14th of January, 1862, Mr. Donald McOay wrote to Earl Eussell, stating that he had lately come to England with the intention of purehasiug marine steam-engines and iron armor-plates for men-of- war ships, but that the manufacturers who could furnish them objected to enter into any contract on accouut of the possible risks in shipping these articles. He inquired whether Her Majesty's government would allow the shipment of them to the United States. Messrs. James Jack & Co., a manufacturing firm of Liverpool, wrote, on the 16th of the same month, stating that they were" offered orders on behalf of the Government of the United States for the construction of gun-boat towers and armor-plates, and asking whether it would be considered improper for them, as British subjects, to undertake the execution of these works at the time. Both applicants were informed that there 1 Appendix to British Case, vol. vi, p. 173. 2 Appeudix to United States Case, vol. i, p. 521. 3 Ibid, p. 523. ' Appendix to Britisli Case, voL vi, pp. 183, 189-191, 197. 272 TREATY OF WASHINGTON. was not any impediment to their undertaking such works or ship- ments.^ The Liverpool, New York and Philadelphia Steamship Com- [54] pany addressed Lord Kussell *ou the 31st of January, on the question of the exportation of arms to the United States. They said that, on the issue of the Queen's proclamation of the 13th May, 1861, they had given notice to all their shippers that they could not carry contraband of war. They had subsequently been asked to carry forward the cargo of the steamer Bremen, built in England, but sailing under the Bremen flag, and a competitor with them in the Atlantic trade, which they had engaged to do, but finding on the arrival of the cargo at Hull, en route for Liverpool, that it comprised about 600 cases of rifles, they refused to carry them. A somewhat similar case had occurred with goods from Antwerp. On their refusing to carry these goods they had received information from the Continent that, if they would not do it, the goods would be sent to London, and thence by railway to Southampton, whence there was no dififlculty in shipping them by the Hamburg company's steamers, (built in England, but sailing under the Hamburg flag,) and they had reason to believe that this course had been regularly adopted, and that the arms they had refused to carry the day before were being shipped that day by another •British steam- conveyance from Liverpool. They found that their own refusal had tended to prejudice them with their customers, and par- ticularly with the United States Government, who had transferred the mail service from them to the German coitipanies. The reply to the company, dated the 12th of February, merely referred them to the Gazette of the 7th of that month, whereby the temporary prohibition of the export of munitions of war had been formally removed.^ A statement made by Lord Eussell to Mr. Adams, and the reply of the latter, are recorded in a dispatch to Lord Lyons of the 19th Decern-, ber, 1861, as follows : In regard to the export of arms and animnnition to the Confederate States, I had lately read the opinion of the attorney-general,^ and helieved it was in entire oouform-: ity Tvith the provisions of the foreign-enlistment act: warlike equipment of a vessel ■was prohibited; the loadiug a vessel -with arms and ammunition was not prohibited. But in point of fact a much greater amount of arms and ammunition had been sent to the Federal States, where there was no obstacle to the export or the import, than to the ports of the Confederate States, which were blockaded. Mr. Adams admitted, this to be the fact, and said he had refrained from pressing a more rigorous compliance with the foreign-eulistmeut act for this reason.'' Lord Eussell returned to the subject in a conversation which was reported by Mr. Adams to Mr. Seward on the 22d May, 1862.' Mr. Adams, in compliance with instructions from his Government, had pressed on Lord Eussell the expediency of revoking the recognition Of the belligerent status of the confederate government, and had men- tioned, in connection with this subject, the irritation produced in the United States by the reports of supplies furnished by private persons in England to the confederates. Lord Eussell said "that large supplies of similar materials had been obtained in England on the part of the United States, which had been freely transported and effectively used against the insurgents." "I answered," said Mr. Adams, "by admit- ting that at one time a quantity of arms and military stores had been ^ Appendix to British Case, vol. vi, pp. 159, 160. '•' Appendix to British Case, vol. vi, pp. 160-162. 3 This was, no doubt, in the case of the Bermuda. See Appendix to British Case, vol. ii, p. 138. ■■ Appendix to British Case, vol. vi, p. 159. * Appendix to Case of United States, vol. i, p. 536. COUNTBK CASE OF GKEAT BEITAIHT. 273 purchased here as a purely commercial transaction, for the use of the Federal Array, but that I had early objected to this practice for the reason that it prevented me from pressing my remonstrances against a very different class of operations carried on by friends and sympathizers with the rebels in this island, and it had been discontinued. We had, indeed, purchased largely in Austria, but that government had never given any countenance to the insurgents." Lord Eussell's views are given in a note to Mr. Adams of the 17th May, inclosed in this dispatch. . It may be observed that the agents of the confederate government, if the correspondence presented by the United States is to be believed, had themselves at this time been drawing supplies from Austria, and that Major Huse had been endeavoring to ship ten batteries of Austrian field-guns at Hamburg, and was about to invest in 20,000 Austrian rifles then in the Yienna ar^enal.^ Mr. Adams was, however, mistaken in supposing that the practice of haying arms in England for the United States Government had been discontinued. Messrs. Naylor, Yickers & Co., of IsTew York, Liverpool, and London, bought and shipped to the United States large quantities of small-arms. They were supplied from Birmingham alone with 156,000 rifles between June, 1802, and July, 1863. They acted very extensively as agents of the United States Government, and submitted to that Government large proposals from the Birmingham Small- Arms Company. The Assist- I ' ant Secretary of War at Washington, in a letter addressed to [55] them on the 20th October, 1862, *directly sanctioned an arrange- ment for the supply of 100,000 rifles, and the acceptance of this order was duly notified to the Secretary of War by a letter from Bir- mingham, dated November i, 1862. The arms were sent to Liverpool for shipment. In December, 1863, fifty 68-pounder guns were proved at the royal arsenal at Woolwich, at the request of Messrs. T. and C. Hood, and after proof taken away by Messrs. Naylor & Co., and shipped to New York. Mr. Marcellus Hartley, of the firm of Schuyler, Hartley & Graham, already mentioned, was also a large purchaser of small- arms in London during the latter half of the year 1862.^ The general results of these operations may be traced in the official returns of exports from Great Britain to the northern ports of the United States, published by the board of trade. These show that, whereas the average yearly exports of small-arms to those ports for the years 1858, 1859, and 1860, were 18,329, they rose, in 1861, to 44,904; in 1862, to 343,304; and amounted, in 1863, to 124,928, These are the recorded shipments of small-arms ; but there is reason to believe that other shipments, to a considerable extent, were made under the denomination of hardware. Of exports of parts of arms there is no record prior to 1862. In that year they were valued a,t £21,050 ; in 1863, they rose to £61,589 ; in 1864, they still amounted to £10,616; and the average for subsequent years has sunk to £4,249. Of percussion-caps, the average export in the years 1858, 1859, and I860, was 55,620,000 ; in 1863 it rose to 171,427,000 ; and, in 1864, was 102,587,000. Of cannon and other ordnance, the exports in the year 1862 aipne were valued at £82,920; while the aggregate value of the exports for the other nine years, from 1858 to 1861, and from 1863 to 1867, was but £3,336. The exports of saltpeter for the years 1858 to 1861 had averaged 248 tons yearly. The purchases for the United States Government raised ' See Appendix to Case of the United States, vol. i, p. 539 ; vol. vi, p. 69. ^Appendix to British Caae, vol. vi, pp. 188-193. 18 A— n 274 TREATY OF WASHINGTON. the amount to 3,189 tons for the year 1862 alone. From 1863 to 1867 the yearly average has again sunk to 128 tons. In addition to the ex- ports from England, there was shipped from India, direct to the north- ern ports of America, a total of 39,840 tons, between the years 1860 and 1866, both inclusive. The amount of le^d shipped, which had averaged 2,810 tons yearly, rose, in 1862 and 1864, to 13,148 and 11,786 tons respectively. The exports of ready-made clothing, apparel, &e., also rose, in 1863 and 1864, to double the average amount, in consequence, as may legiti- mately be presimied, of the supplies required for the United States Army. It is estimated that the extra supplies of warlike stores thus exported to the northern ports of the United States daring the civil war repre- sent a value of not less than £2,000,000, of which £500,000 was the value of muskets and rifles alone. On referring to the published statistics of imports into the United States, a similar increase will be observed. The value of arms imported from England into the United States is there given for the years ending June 30, 1860 and 1861, at $281,998, and $257,055 respectively. In the succeeding year the imports of arms amounted to an estimated value of $1,112,098; in the year ending June 30, 1863, to $717,409; and in that ending June 30, 1864, to $409,887. But, in addition to these en- tries, there is a table given in the Tcturns of dutyfree imports, under the heading of " Articles of all kinds for the use of the United States." During the two years ending June 30, 1860 and 1861, no such articles were returned as imported from England ; but in the years ending June 30, 1862 and 1863, amounts of $3,316,492 and $6,778,856 are entered under this heading ; and in the two succeeding years the articles thus imported from Great Britain still reached th-e estimated value of $1,568,407 and $1,853,773 respectively. That a large proportion, if not the whole, of these imports consisted of materials for the supply of the military forces of the United States cannot admit of a doubt.^ We see then that, during the civil war, arms and military supplies of all kinds in very large quantities were purchased in England, France, Austria, and other neutral countries by the Government of the United States; that they must have exceeded in amount any supplies which could reach the Confederate States ; that these purchases were of the- most pressing necessity, especially during the earlier years of the war ; that they were effected by agents employed by that Government, some of whom were officers in its military service ; that arrangementis were made for the regular shipment from England to the United States of the goods so purchased from time to time ; and that the goods purchased in England were paid for through the financial agents of the American Government in England. In the sense, therefore, in which these [56] expressions are used by the * Government of the United States in its case, that Government had in England during ithe war a branch of its War Department and a branch of its Treasury — that is, persons employed by the War Department in selecting, ordering, and procuring arms and military supplies, and causing them to be shipped to America, and financial agents of the Treasury, through whom its payments were made, and who were provided by it with funds for that- purpose. In the sense in which Great Britain is said to have become the arsenal and treasury of the Confederate States, she became th« arsenal and treasury of the United Statesw Had th« confed'eracy and its agents filled, in the foregoing transactions, the parts actually sustained by the 1 See returns, Ibid., pp. 200, 202. COUNTER CASE OF GEEAT BRITAIN. 275- United States and their agents, we should have a narrative differing in HO material respect from the story of confederate purchases and ship- ments told in the American Case. ASMS AND MILITARY SUPPLIES PUECHASBD BY THE CONFEDERATE STATES. The Government of the United States has not furnished the arbitra- tors with an account of the names and operations of the a™, a„d military agents employed by it for the above-mentioned purposes S"?",' cSd'e" w during the war; and it has, therefore, been necessary to ^"""'• supply that omission, although the means of doing so possessed by Her Majesty's government are very imperfect. Of the operations of the persons employed by the other belligerent, the Government of the United States has, on the other hand, given a very long and circum- stantial history, purporting to be drawn from the papers which came into its possession at the end of the war. It is not, and indeed it could not be, pretended that the correspondence extracted from these papers was in any way known to the British government. Nor has the Gov- ernment of the United States furnished the arbitrators with any means of judging whether the letters are authentic, or the facts stated in them true, or the persons whose names purport to be attached to them (per- sons entirely unknown to the British government) worthy of credit. Her Majesty's government thinks it right to say that it attaches very little credit to them. There is, however, no reason to doubt that the confederate govern- ment,. during the whole course of the war, effected purchases of arms and munitions of war to a considerable amount through its agents in England, France, Austria, and elsewhere. And it is now well known that, as its financial agents for this and other purposes, it employed the mercantile house of Eraser, Trenholm & Co., which was established at Liverpool, in connection with a firm at Charleston. The circumstance is stated as follows in the Case of the United States : " Before or about the time the insurrection broke out, and, as the United States believe, in anticipation of it, this house (the Charleston house of John Fraser & Co.) established a branch in Liverpool, under the name of Fraser, Tren- holm & Co. Prioleau was dispatched thither to take charge of the Liver- pool business, and became, for purposes that may easily be imagined, a naturalized British subject."^ Her Majesty's government finds, on in- quiry, that Prioleau, in fact, settled himself as a merchant in Liverpool in 1854, and remained in England, except during a temporary absence of aiew months, from that time till June, 1863, when he applied for naturalization, stating, in his application, that he had been a resident householder for eight years, had married an English wife, and was de- sirous of acquiring landed property in England, and residing there per- manently.2 What further motives for this step a fertile imagination might discover Her Majesty's government cannot say. The advantages conferred at that time by naturalization in England were the legal capacity to hold immovable property, and to register vessels as a British owner. None of the vessels, however, to which this inquiry relates, were registered in the name of Prioleau, nor in that of his firm. In truth, all of them, except the Shenandoah, with which the firm appears to have had nothing to do, had sailed long before Prioleau became a ' Case of the United States, p. 220. » Appendix to British Case, vol. v, p. 202. 276 TREATY OF WASHINGTON. British subject. Tlie motives stated in the application were probably the real ones, since the applicant appears to have continued to reside in England. It would be a waste of time to follow the Government of the United States into the details of the various shipments made from England on confederate account. . Both belligerents were left free to purchase and ship munitions of war, and both availed themselves of that liberty. The suggestion that such transactions were in progress called for no in- quiry on the part of the British government, and the transactions themselves, had they been known to it, would have called for no inter- ference. The same observation applies to the expedients for raising money which were adopted during the later years of the war. The Confed- erate States, being debarred by the blockade from exporting their pro- duce to Europe, endeavored to procure funds in England, France, and elsewhere, by hypothecating stocks of cotton, stored for exporta- [57] tion, and to be '*delivered after the conclusion of the war. The agent employed in England for this purpose was a merchant resi- dent at Liverpool. Other agents were employed in Paris. No action or suit at law founded on transactions of this kind could have been sustained in England, either by or against the confederate government'; since it had not been recognized by Great Britain. But it was not the 4uty, nor was it within the legal power of the British government to prohibit or prevent them, as it could not have prevented its subjects from subscribing to the vast war-loans which were raised from time to time by the Government of the United States, and were largely held in Europe. Those who advanced their money to the Confederate States did so at the risk of losing it, if the confederacy should be overthrown, and they have lost it accordingly .^ Pressed by the difficulty of distinguishing between their own operai- tions in Europe and those of the Confederate States in such a manner as to make it appear that the British government was bound to give free scope to the former and "repress the latter, the United States appear to imagine that they have found such a distinction in two circumstances. One of these is, that the needs of the confederacy were, as they allege'^ more urgent than those of the Union; the former could only obtain their military supplies from abroad; the latter could manufacture some of theirs at home.'* The other is, that the United States, having the command of the sea, could transport the goods purchased by them freely and openly, or (as it is expressed) " in the ordinary course of commerce;" while the confederates were obliged to "originate a com- merce for the purpose " — that is, to get their goods transported by way of Nassau and Bermuda, which are commonly places of no great trade— and further to make use of those concealments by which the traffic in contraband of war, when not protected by a powerful navy, usually tries to elude the vigilance of the enemy's cruisers. 1 The principle is clearly stated by Heffter, section 148, -in the passage cited below, (Annex A.) It has been fully recognized by the United States. The following extract from a note of Mr. Webster's was cited and adopted by Mr. Soward in answering a complaint of the Mexican minister in 1862: ' ' " As to advances, loans, or donations of money to the government of Texas, or its citizens, the Mexican government hardly needs to be informed that there is nothing unlawful in this so long as Texas is at peace with the United States, and that these are things which no government underfcaltes to restrain."— Appendix to case of United States, vol. i, p. 589. s Case of the United States, pp. 310-312. COUNTER CASE OF GREAT BRITAIN. 277 Are we theu to understand tbat, according to the views put forward in the Case of the United States, the "strict and impartial neutrality towards both belligerents," which it is the duty of a neutral government to maintain, obliges it to find out which of the two stands in the |reater need of supplies, and consists in lending aid, by measures of repression, to the belligerent whose force is the greater and his wants the less pressing of the two, and thus assisting him to crush more speedily the resistance of his weaker enemy ? Her Majesty's government is unable to assent to this novel opinion, advantageous as it Avould doubtless prove to states which, like Great Britain, possess a powerful navy. To hold an even hand between the two ; to leave the trade open to both equally or close it to both alike; to leave the stronger free to profit by his strength, and the weaker to elude, as best he may, the superiority of his enemy on the high seas, has commonly been regarded as the only course consistent with impartial neutrality, and this was the course steadily pursued by Great Britain. The transportation of military supplies was equally a contraband com- merce, whether carried on openly or covertly, from Liverpool or London or from Nassau. It is asserted by the United States that the contra- band trade between England and Nassau was " covered by the British flag," and that this, coupled with the protection afforded by Her Majesty's government to the confederate agents in England, " deprived the United States of the benefit of their superiority at sea."i Her Majesty's gov- ernment does not understand the United States as alleging either that any protection was afforded to the agents of the Confederate States in England which was not extended also to those of the United States, or that contraband trade under the British flag was protected against search and capture at sea. Both of these assertions would be unfounded : but the language employed is calculated to produce this erroneous im- pression on the minds of the arbitrators. The agents of both parties in Great Britain enjoyed alike that protection, and no more, which per- sons resident or commorant here derive from the laws under which they live. Ships carrying between Liverpool or London and Nassau military supplies destined for the Confederate States were not, in fact, protected by the British flag, but were left to be dealt with on the principles of international law, as administered in the prize-courts of the United States, equally with those bound directly for confederate ports. Her Majesty's government, with a powerful navy at its command, abstained from all interference, confining itself to a remonstrance, conveyed in very moderate terms, when there appeared reason to apprehend that [58] *the United States cruisers, in their eagerness to make prizes, m'ght harass unduly the regular and legitimate commerce of Great Britain. BLOCKADE-RUNNING AND THE NASSAU TRADE. The sea-coast of the Southern States being blockaded, though the block- ade was for a long time imperfect, importers of goods into Bi„ck,de-r<,n>,iw those States were exposed, if the goods were contraband, to a a»d.heNa..a„t.aae. double risk of capture, which increased or diminished according to the length of the voyage. The island of New Providence, from its compara- tive nearness to the blockaded coast, offered some special facilities for - the traffic, and large quantities of goods were sent to it as the war went on, with a view either to their being sold in the island to customers buying ' Case of the United States, p. 312. 278 TREATY OP WASHINGTON. for the southern market, or to their being forwarded direct to one or other of the blockaded ports. Havana and Cardenas, in the Spanish island of Cuba, were made use of for a like purpose, and a confederate agent is state(rto have been resident there. In this there was nothing which the British government was bound or legally empowered to prohibit, nor was any such obligation incumbent on the government of Spain. Persons trading either with the Southern States or with those which adhered to the Union were free to use Nassau, as they were free to use any other port in the British dominions convenient for their purpose. Traffic of the former kind was diflScult and precarious, while that of the latter kind was safe and easy, and could be carried on from Liverpool or Halifax with more convenience and security than from Bermuda or IS'assau. But this difference imposed no special obligations on the British government in regard to either the one or the other. One tangible ground of complaint the United States believe them- selves to have discovered in the circumstance that merchant ships ar- riving at Nassau were able to break bulk there, and transship their cargoes without a bona-Jide importation into the colony. It is repre- sented that this became a constant practice with vessels transporting goods for the confederates ; and the Government of the United States "asks the tribunal to find" that the permission to do it "was a viola- tion of the duties of a neutral." That the tribunal is invested with no authority to decide this question, either in favor of the United States or against them, it is needless to say. It is asserted by the United States that the permission was given (or, in other words, that a previously existing prohibition of transshipment wiihin the limits of the colony was removed) by an act of the colonial government. In proof of this it relies upon an intercepted letter, pur- porting to be written by a confederate agent. That it was an indul- gence granted, exclusively or especially, to vessels trading with the Con- federate States, is not asserted; though, under the circumstances of the case, it might be expected to work principally in their favor. No information of such an act on the part of the authorities of the colony ever reached Her Majesty's government. It was not complained of at the time either by the consul at Nassau or by the minister of the United States in London, although the fact that transshipments were taking place was at a later period mentioned as a grievance. From the general character of Mr. Whiting's correspondence, and from his activ- ity in discovering injuries and affronts even where none existed, there can be no doubt that, had the permission been given, and had it pos- sessed the importance which the United States now attributes to it, he would instantly have made it a matter of expostulation and complaint, and it would have been promptly brought to the notice of Her Ma,jesty's government by Mr. Adams. But even the Government of the United States itself, which was in constant correspondence with Mi-. Whiting, appears to have known nothing about the matter, and now produces, iu support of a complaint which it regards as serious enough to demand a judgment from the tribunal, no evidence beyond, a loosely- worded sen- tence occurring in a letter purporting to be written by a confederate agent ; while of this letter, and the time at which it came into the pos- session of the United States, no better account is given than that it is one of a large number "captured at the taking of Richmond and atother times. " Her Majesty's government has now ascertained on inquiry that the statement is erroneous. The fiscal regulations of the colony prohibited the transshipment of goods within its lipiits unless the goods were landed COUNTER CASE OF GREAT BRITAIN. 279 for examination by the officers of customs. Goods so landed might be immediately reshipped from the same wharf for exportation in the same vessel, or in others, at the choice of the shipper. The prohibition (which existed only for fiscal purposes) might, in any case, be dispensed with by permission granted by the receiver-general. This permission had been customarily granted as a matter of course in the case of goods stated to be in transit, and it was accorded frequently during the war. The first application was made on the 19th December, 1861, in [59] the case of the *Eliza Bonsell, a vessel laden, not with contra- band of war but with an assorted cargo ; and after a reference to the governor and council, it was granted, the receiver being satisfied that the goods could be examined on board as well as if they had been placed on the wharf.i No permission appears to have been granted in the case of the Gladiator, nor does it appear whether her cargo was or was npt landed before exportation. The prohibition was not removed or modified, and no change was made in the regulations. Had it been removed, however, the fact would have had no importance, since there was nothing to prevent cargoes landed from being immediately reshipped and distributed into smaller vessels; and the authorities were not at Nassau, any more than at Liverpool, authorized to prevent the exportation or transit of articles contraband of war. That cargoes were, in fact, frequently transshipped, either with or without an intermediate landing. Her Majesty's government h as no doubt, though the statements made in the Case of the United States are in many instances not borne out, when compared with the documents pro- duced in proof of them.^ The Government of the United States has, 'Appendix to British Case, vol. v, p. 30. .'To avoid this risk, it is said, (p. 223,) "it was resolved to send the purchases wiiioh Blight be made in England to Nassau in British bottoms, and there transship them into steamers of light draught and great speed, to be constructed for the purpose. * The first offer from Richmond that is known to have been given for such a shipment is dated the 22d of July, 1861." The passages referred to as authorities do not show any such system. The letter from Walker to Huse & Anderson of July 22, 1861, suggests that a number of small vessels should be secured under British colors and with British clearance, laden with arms and convoyed by the armed vessel MacRae, which had been placed by the secre- tary of the navy at the disposal of the war department and was to be sent to England for the purpose. The vessels might make the port of Nassau or some other port equally favorably situated, whence they might clear with probable safety for theooast of Honduras or of Yucatan, and enter upon the coast either of Florida or Louisiana. Nothing is said of transshipment at Nassau. The Gladiator, which was the first ves- sel that arrived at Nassau with contraband of war on board for the Confederate States, (December 9, 1861,) had originally orders not to land her cargo. It was not until after she arrived at Nassau that it was decided to distribute it into smaller vessels. (See Appendix to Case of the United States, vol. vi, p. ,56, where the idea of transshipment 18 spoken as a last resource, and Mr. Benjamin's order to Captain MafJit, p. 57, also Mr. Heyliger's letter, p. 58, which acknowledges the receipt of orders to transship.) The letter from Huse to Gorgas, March 15, 1862, ib., p. 69, besides being long subse- guent in date, does not speak of any regularly established plan for transshipment, although he remarks on the difiiculty of uniting in one vessel the qualities necessary for crossing the ocean and for running the blockade. In consequence of this. Major Huge is "quite at a loss what destination to give to the Bahama." The next shipment he means to send to Havana. Huse (at Liverpool) was not directed to send the cargoes to Nassau, but to some port in Cuba, "to care of our £%ent, Mr. Helm, and we can get them away with almost en- tire certainty by breaking bulk there." (Ibid., p. 68.) The cargo of the Economist was not transshipped. (Ibid., p. 71.) That of the Southwick was only transshipped on account of the amount of demur- rage to be paid under her charter, while she was waiting for an opportunity to run the blockade. (Ibid., p. 73.) As to the existence of "private ventures," it seems that most of the arms and sup- plies, mentioned in the correspondence in vol. vi, were contracted for by the confede- rate government, but it by no means appears, nor is there reason to believe, that all 280 TREATY OF WASHINGTON. however, omitted to inform the arbitrators of the means which were adopted bv itself, as a belligerent power, to extinguish the traffic with the South,'^of which it complains. These means consisted lu a rigoroTi& extension of the belligerent right to capture neutral vessels on the high seas for the conveyance of contraband and for intended breaches ot blockade, an extension previously unknown to international law. Before this war, it had been commonly assumed that, where a neutral vessel was bound from one neutral port to another, a prize-court would not inquire into the destination of the cargo. The American courts intro- duced the principle that, if sufficient evidence could be discovered (and the evidence deemed sufficient was often very slight) of an intention that the cargo should ultimately be delivered at a port of the bellige- rent, the cargo, and in some cases the ship also, became liable to con- demnation. Goods, therefoi;e, on the voyage between a British port and Nassau were equally liable to capture with goods on a direct voyage from Nassau itself or from Liverpool to a southern port, if the prize- court had any reason to suppose that to a southern port they were in- tended ultimately to go, and not to the Nassau market for hone-fide sale there. And the ship shared the fate of the cargo, unless there were reason to believe that the owners were ignorant of the ulterior destina- tion of the latter, and had not hired their vessel with a view to it. These decisions, to wliich no opposition was offered on the part [60] *of Her Majesty's government, destroyed the advantage which the proximity of a neutral port offers to a blockade-runner, in diminishing his risk of capture by diminishing the length of his voyage. The only advantage which remained was that of transferring the car- goes, whether by means of a sale in the market or otherwise, to smaller vessels of lighter draught and greater speed, which could make their way into the blockaded ports, not, however, as it appears, by means of the inland waters along the shore, (which were chieiiy used during the first year of the war,) but by running past the blockading-vessels. In truth, when the blockade of these ports .became really effective, the value of a neutral port at the distance of a two days' voyage was lost to the blockade-runner; it was valuable to him only as long as they were not effectually blockaded. To assist the blockade, however, was not the duty of the neutral government. PALSE IMPOKTANCE ASCRIBED TO THE PROCLAMATION OF HETJTEALITY. In the Case of the United States some special importance appears to False impminnce bc ascrlbcd to thc fact that the transport of contraband of Lm"t.on'°o'i''°..''e"''; "^^r ^^^ brcachcs of blockade had been denounced as un- traiity. lawful lu that proclamation of neutrality to which the American Government takes so much exception. It can scarcely he necessary to expose so transparent an error. The proclamation of neu- the vessels loaded with them were chartered by confederate agenta. Isaac Campliell & Co. contracted to deliver the arms sent by the Columbia and Sylph to the Confed- erate States, and tried to get off their bargain. (Appendix to Case of the United States, vol. vi, p. 88.) Part of the Herald again is mentioned as reserved for private eargo, p. 05. The information possessed by the United States Government, and communicated to Her Majesty's government at the time, is given in vol. i of the Appendix to the Case of the United States. Mr. Adams in December, 1862, communicated a letter from Mr. Morse, United States consul in London, giving an account of the system pursued. , He says that during the earlier part of the war, the trade was carried on by agents, but at that time by British merchants on their own account, in steamers chartered by them or freighted by private speculators.' (Vol. i p. 731.) COUNTER CASE OF GREAT BRITAIN. 281 trality did uot create, nor purport to create, any new prohibitions. In England tlie sovereign cannot, by proclamation, either enact laws oi' abrogate them ; all that he can do is to make public the provisions of existing laws, and enforce them in such a manner as may be necessary. The effect of this proclamation was solely to warn British subjects that they would incur, by doing certain things, penalties imposed by the law of nations, against which their government would not protect them, and, by doing certain other things, penalties imposed by the municipal law of Great Britain, which the government would enforce against them. But Her Majesty neither did nor constitutionally could under- take, by issuing it, any international obligations toward either belliger- ent beyond such as are common to all neutral powers. It has been the practice in the United States to issue proclamations, different, perhaps, in phraseology, but in substance the same. In these, obedience to the law of nations is "enjoined;" the carriage of contraband and breaches of blockade are denounced as " misconduct," and warning is given that persons " so misconducting themselves " will doit at their peril. But the American Government does not appear to have understood that by these warnings it bound itself to prohibit or even to discountenance the acts thus denounced, or to interpret with any peculiar strictness its own neutral duties under the law of nations.' KNOWLEDGE OF PACTS IMPUTED TO THE BRITISH GOVEENSIENT. It is not material to pursue the question how far either the transac- tions of the confederate government and its agents, or those ,(„^„,^j^^ ^^ ^^^^ of the Government of the United States and its agents, in imESto'theBnt" relation to the purchase and transportation of arms and munitions of war, could have been known, by inquiry, to the govern- ment of Great Britain. Had they been known to it, no obligation to I prevent them would have arisen ; no obligation, therefore, arose to pros- ecute inquiries respecting them. It is said^ that the appointment of the confederate agents, their acts, and the powers intrusted to them, were open and notorious, and that, " if there was any pretense of con- cealment at the outset, it was soon abandoned." But it appears from the very documents relied on, that these agents took the greatest pains to keep all the details of their proceedings secret.^ " The United States ministers to England, France, and Belgium," wrote one of them in July, 1861, " have been very active in their endeavor to discover what the agents of the confederacy are effecting. They have agents employed for no other purpose, and it is of the highest importance that these should be kept in ignorance of all the acts of any agent of the confed- eracy. Any person that has ever become acquainted with Europe from personal experience knows how difficult it is for a stranger to keep his actions secret when spies are on his path." And, in March, 1862, the same agent writes,* " I beg to suggest to the department the importance of everything relating to these shipments being kept in secret," adding, as before, that his " steps are narrowly watched by the agents of the United States." Her Majesty's government did not resort, and ' See President Washington's proclamation in 1793, (Appendix to Briiisli Case, vol- T, p. 237,) and Mr. Jefferson's subsequent letter, referred to above, p. 49, and President Grant's proclamation, issued at the commencement of the late war between France and Germany. (Appendix to Case of United States, vol. vii, p. 43.) = Case of the United States, p. 221. 'Appendix to Case of the United States, vol. vi, p. 34. ,. g^^ Nassau. It was pointed out in reply that the cases were not parallel. Those vessels were several thousand miles distant from their respective homes, and to them consequently coal was an article of real necessity, whereas the Flambeau was within a very short distance of the ports of her own nation — Key West, for instance — where all her necessities could readily have been supplied. In obtaining coal at Nassau, therefore, there could be no other object than that of enabling her to continue what was, in fact, to some extent, a blockade of the port. The commander of the Flambeau replied,^ protesting against such a construction being placed on his presence, and declaring that he was strictly enjoined to respect the rights of neutrals. It appears, however, from a letter addressed by the governor to the British commodore at Havana, dated December 12, 1861, that the Flambeau constantly kept her steam up ready for instant movement, and there was a report that she intended to cut out the Gladiator, or to States. No objection was, liowever, raised to their sailing by the United States Gov- ernment. The New York Times of the 30th of March, 1871, gives the following state- ment of the supplies forwarded by these and other vessels : " The steamship St. Laurent sailed yesterday with her last consignment of arms and munitions of war for France. She carried among her cargo 1,676 cases of cartridges, .574 cases of harness, 1,444 cases of rifles, 205 cases of bayonets, and 67 cases of projec- tiles. The wliole cargo was valued at $708,955.50. Tliis malses nineteen cargoes of arms sent to Havre since the war began, the previous shipments being as follows : Date. Septenn)er 3. . September 20 . October 4 October 20 October 29 November 2 . . . jSTovember?..- November 15. . November 28. . November 28. . December 13. - January 2 January 4 January 14 January 21 l''el)ruary 6 T^ebruary 13. . . Mai-cb 1 Total.. Pereire Lafayette Ville' de Paris St. Laurent Pereire Avon Ontario Lafayette Erie ViUe de Paris Pereire Concordia Lafayette City of Bnenos Ayres. Ville de Paris Washington I^iga Pereire Guns. Cartridges. Value. 2,155 15, 840 4.), 023 IB, 923 104, 870 .58, 340 72, 540 50, 660 120, 800 11,760 14, 100 25, 180 37, 000 8,240 26, 100 462, 500 3, 955, 000 9, 484, 000 10, 299, 880 2, 164, 000 11, 500, (100 17, 785, 552 9, 538, 736 16, 818, 120 12, 399, 320 8, 164, 000 158, 751 4, 671, 000 1, 317, 000 2, 887, 000 2, 275, 820 3, 169, 000 117, 082, 379 859,196 417,633 915,487 562, 785 784. 575 707,001) 1, 764, 6.% 930, 354 1,744,080 1,053,205 636,236 834,000 754,275 448, 40O 747,451 421,340 731,38tt 398, 776 13,810,71» It appeals, from the official report of the Secretary at War, that the sales of ord- nance stores by the Government of the United States in the year 1870-'71 amounted, in the aggregate, to $10,000,000. ' Appendix to Case of United States, vol. i, p. 346. " Appendix to Case of United States, vol. vi, p. 51. COUNTER CASE OF GREAT BRITAlIf. 287 geize that vessel immediately after leaving the port.' The consul of tto United States, in a dispatch to his Government of the following day^ stated that " the captain of the Flambeau is watching intently the movements of these rebel steamers."^ The consul notices that "an English man-of-war has arrived, and several more are telegraphed as in sight," and he does not doubt that every protection will be afforded to tiie Gladiator, and every means aiforded to facilitate her escape. The attorney-general of the colony advised the governor that, though it might be in accordance with the regulations issued by Her Majesty's government to suffer coal to be supplied to an armed vessel of either belligerent, putting into port under ordinary circumstances, and desir- ous of obtaining a supply of coal in the ordinary mode by purchase in the market, such was not the case of the Flambeau, or of the coal in t(mestion. He therefore advised that the restrictions placed on the use of that coal should be continued, and that reference should be made to the home government for instructions. 3ihe dispatches reporting these facts were received at the foreign office from the admiralty aod colonial office on the 15th aud 16th of January, 1862, and the question was at once referred to the law-officers of the Crown. Their opinion was that the governor had acted jiroperly in re- , fusing to allow the proposed coal-depot to be formed at Nassau. The formation or permission of such a depot for a purpose so directly con- nected with belligerent operations would be inconsistent with the neu- trality of Great Britain.^ One of the vessels laden with coal appears to have been sent back at once by the United States consul. The other, the Caleb Stetson, re- mained in the harbor with the coal on board, and does not seem to have suffered any injury from the serious leak previously reported by the consul, as rendering necessary the transshipment of her cargo to the Flambeau.^ [65] * Eepresentations ou this subject were made by Mr. Adams to Earl Russell on the 24th of February, 1863. Lord Eussell replied, on the 25th of March, explaining the governor's proceedings, and Mr. A.damSj though apparently dissatisfied, did not pursue the subject.' The attempts of the United States to form coal-depots for their cruisers at British ports were not confined to Nassau. They had simul- taneously sent vessels laden with coal for the same purpose to Bermuda, (which was likely to prove a convenient station,) consigned in a similar manner to their consul there. The governor, on learning that the con- diact of the authorities at Nassau in preventing such a depot had been approved, informed the United States consul that it had been decidedi not to allow the formation in any British colony, either by the Govern- ment of the United States or by that of the so-called Confederate States, ef a depot for the use of their respective vessels of war.'' The orders of the 31st of January, 1862, issued shortly after the occurrences at Nassau, laid down general rules to be observed order, of .h^ si.t m all the ports of the United Kingdom, and ot Her Maj- iationtoNa.>au. esty'^ colonial possessions, as to the admission of armed ships of either helligerent, the time during which they might be allowed to remain, and the conditions under which they might be suffered to receive coal 1 Appendix to British Case, vol, v, p. 27. !* Appendix to Case of United States, p. 47. ■'Appendix to British Case, vol. v, p. 31. ■" Appendix to Case of the United States, vol. vi, pp. 46, 53. ■■> Appendix to Case of United States, vol. i, p. 346. ' Appendix to British Case, vol. v, p. 8. 288 TREATY OF WASHINGTON. and other supplies. These orders at the same time closed the ports and waters of the Bahama Islands to the ships of war and privateers of both belligerents. They will be referred to, as regards their general operation, in a later part of this Counter Case; and ample materials will be supplied for judging whether they were or were not fairly executed, and whether it was by confederate ships or by ships of the United States that the hospitalities of British ports were the more largely used. In the definition of neutral duties produced in the earlier portion of the Case of the United States,^ a definition which purports to lay down "principles" and "doctrines of international law," and to be "in har- mony with the views of the best publicists," it is affirmed that " the ports or waters of the neutral are not to be made the base of naval operar tions by a belligerent." " Ammunition and military stores for cruisers cannot" be obtained there; coal cannot be stored there for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies." It might have been reasonably supposed, therefore, that the course pursued by the authorities at Nassau, in the case of the Flam- beau and her coal-ships, would have merited the approval of the Gov- ernment of the United States, instead of being denounced as a violation of neutrality. The restriction in question is not indeed commanded, as the Government of the United States supposes it to be, by any rule of international law, but it may be imposed by any neutral power which thinks fit to do, and was, under the circumstances of the case, clearly proper and convenient. The same observation applies to the orders of the 31st January, 1862. It is undeniably within the competence of a neutral government to close, if it think fit, all its ports, or any selected ports within its dominions, to belligerent ships of war. This has frequently been done. Thus, in 1820, during the war between Spain and the Spanish-American Repub- lics, an act of Congress was passed, on the recommendation of the President, by which it was enacted that no foreign armed ship should enter any other harbor than Portland, Boston, New London, New York, Philadelphia, Norfolk, Smithville, Charleston, or Mobile, unless in case of distress, stress of weather, or pursuit by the enemy. This act was to continne in force for two years. In determining to make such a selec- tion, and in designating particular ports for the i>urpose, the neutral government has to consult its own judgment only. But where any par- ticular port or place is, from geographical situation or local circum- stances, liable to be made use of by both belligerents or either as a station or base for naval operations, it becomes a simple measure of ordinary prudence and precaution. To prevent the Bahama Islands from being used for this purpose was the avowed intention both of the restriction on coaling enforced at Nassau and of the subsequent order. These islands were so near to the American coast that the liberty to resort to them could not be valuable to either belligerent for any other purpose, unless it were to the belligerent whose own harbors were under blockade, and to whom, therefore, the exclusion must necessarily be more unfavorable than to the other. What, then, is the grievance of the United States'? It is, that the United States cruisers were precluded from using the Bahamas for belligerent operations. Nassau was frequently visited by blockade-runners, and was within a moderate distance of Charleston and Savannah ; it was, therefore, a convenient station ' Pages 148, 167, 168, 169. COUNTER CASE OF GREAT BRITAIN. 289 and port of call for cruisers employed to watch and capture block- • ade-runners. Thus it is explained that "further stay of the [66J United States * vessels of war was useless" when the expe- dient was adopted of sending in cargoes in light and speedy vessels. Further stay was useless, because the cruiser waiting in port could not overtake and capture these light and speedy vessels. If ships carrying contraband and other goods to blockaded ports in the Confed- erate States were suffered to repair to the colony, United States cruisers ought, it is said, to have been suffered to repair thither likewise for the purpose of watching for and making prize of those ships and their car- goes. That the port would in the latter case have been used as a sta- tion for hostilities, and a point of departure for naval operations, and that it was not so used in the former case, is a distinction which seems to escape the notice of the Government of the United States. The rigorous definition of the duties of a neutral furnished in the third part of the Case of the United States seems to be forgotten in the fourth part. The stringent rules by which the abuse of neutral ports by belligerent vessels was to be prevented have now disappeared, and the measures adopted to guard against that abuse are reckoned among the cases " wherein Great Britain failed to perform her duties as a neutral." 19 A— II [67] *PART V. THE SUMTER AND NASHVILLE. Having examined the miscellaneous charges preferred against Great Britain, but not falling within the limits of the reference to Same" '^ and' l«L»b^ arbitration, such as those which regard the trafSc in arms '""°' and military supplies. Her Majesty's government now ap. preaches that part of the Case in which the Government of the United States at length proceeds to specify the vessels to which its claims relate, the failures of duty which it alleges in respect of them, and the nature of the claims on account of those alleged failures of duty. The wide conceptions of neutral obligation which had been previously presented to the tribunal here assume a concrete form, and are made the basis of actual demands upon a neutral power ; and we are thus enabled to understand what those conceptions really mean, to what lengths the Government of the United States is prepared (if we may judge from the Case) to carry them, and what is the code of interna- tional duty which it proposes to enforce against neutrals, and asks.the arbitrators to sanction. The first vessels in the list are the Sumter and K'ashville. There is no material dispute as to the facts relating to these two ships. Both of them were fitted out and armed for war in confederate ports, were there commissioned as public ships by the president of the Confederate States, and thence dispatched to cruise under that commission. Up to that time neither of them, so far as appears, had ever been in a British port. In respect, therefore, of the original outfit and equipment of these ships, the United States have found themselves unable to suggest any fault on the part of Great Britain, or to bring any charge against her. Nor is it suggested that either of them obtained men, arms, or other military supplies, or augmented or renewed in any manner her military equip- ment within British ports or waters. THE SUMTER. The history of the Sumter has been accurately related in the British Case. It will have been observed that she was a steamship, purchased in a confederate port about or soon after the time of the commencement of the war, by the navy department of the gov- ernment of the Confederate States; that she had received a crew, and was being actively prepared for war before the end of April, 1861, and upward of a fortnight before the date of Her Majesty's proclamation of neutrality; that she put to sea as a commissioned cruiser of the Con- federate States on the 30th June, 1861 ; that she entered in succession, during the period of her cruise, the Spanish port of Cienfuegbs, the Dutch port of Saint Anne's, Cura9oa, the Venezuelan port of Puerto Cabello, the British port of Trinidad, the Dutch port of Paramaribo, COUNTER CASE OF GREAT BRITAIN. 291 the Brazilian port of San Juan de Maranham, the French ports of Port Royal and Saint Pierre, in Martinique, the Spanish port of Cadiz, and the British port of Gibraltar. In each of those ports she was received as a commissioned ship of war. At Cienfuegos, Curagoa, Paramaribo, Trinidad, Maranham, and Martinique, she was suffered to renew her stock of coal and provisions. At C!ura§oa she appears to have staid seven days; at Paramaribo, twelve; at Maranham, nine; at Martinique, fourteen; at Cadiz, thirteen .^ The period of time which elapsed be- tween the dates at which she was suffered to coal at various ports appear to have been as follows, namely, from Cienfuegos to Curagoa, ten days ; from Cura9oa to Trinidad, six ; from Trinidad to Paramaribo, fourteen; from Paramaribo to San Juan de Maranham, six; from thence to Martinique, fifty-flve ; from Martinique to Cadiz, forty-two. As to the quantity of coal which she took on board, she appears to have ob- tained 100 tons at Cienfuegos, 120 tons at CuraQoa, 80 at Trinidad, 125 at Paramaribo, and 100 at Maranham.^ At Martinique she received, by the written permission of the governor, a sufficient stock to carry her across the Atlantic. At Trinidad she had applied for leave to pur- {68] chase coal from the govern*ment stores, but this request was re- fused, and she procured it from private merchants. The question , whether she was properly received as a ship of war, or ought to have been treated as a pirate, was raised by the United States on two occa- sions before she touched Trinidad, (namely, on her arrival at Cienfue- gos and Cura§oa respectively,) and twice afterward, namely, on her arrival at Maranham and Martinique, and in every case fruitlessly. The right of neutral powers to admit her to the ordinary hospitalities of their ports, and to receive her as a ship of war on the mere declara- tion of her commander, was upheld and defended in long and carefully reasoned state papers by the governments of Brazil and the K'ether- laiids,^and was afterward as firmly maintained by France. Of the prizes taken by the Sumter, eleven were captured before she put in at Trinidad ; none between the date of her leaving Trinidad and that of her arriving at Paramaribo, where she took in fresh supplies of coals and provisions; two between Paramaribo and Puerto Cabello; three after leaving Martinique.* It will have been observed that at Gibraltar the Sumter was disarmed and dismantled ; her ciew were dismissed; she was sold, sent to I^iver- pool, and never afterward used for war. She had arrived at Gibraltar before the issue of the orders of 31st January, 1862, which limited the period during which belligerent vessels of war were to be suffered to remain in British ports. Those orders, therefore, could not with justice have been applied to her. When she left Gibraltar she left it unarmed, and at the mercy of auy United States ship which might fall in with her. Oa these facts, the United States ask the arbitrators to find and certify that Great Britain " failed to fulfill the duties set forth in the three rules in Article VI of the treaty of Washington, or recognized by the prin- «iples of international law not inconsistent with such rules ;" and they ask that, in considering the amount to be awarded to the United States, 'Appendix to British Case, vol. yi, pp. 1, 69, 81, 103, 112, 116 ; also Semmes's "Adven- tures Afloat," pp. 139, 147, 154, 160, 181, 187, 197. 206, 210, 216, 232, 260, 297, 304. Appendix to British Case, vol. ii, p. 5 ; vol. vi, pp. 2, 69, 84 ; Semmes's "Adventures Afloat," p. 14'5. 'These dispatches will be found printed in full, Appendix, vol. vi, pp. 12, 29, 35, 75, S4,.92,98. *See list given in Appendix to Case of the United States, vol. iv, p. 473. 292 TREATY OF WASHINGTON. should the tribuDal exercise the power to award a gross sum, "the losses of individuals in the destruction of their vessels and cargoes by the Sumter, and also the expenses to which the United States were put in the pursuit of that vessel, may be taken into account." ^ So far as Her Majesty's government is able to understand the grounds of this demand, (setting aside the accusation of " habitually insincere neutrality" against Great Britain,) they appea;r to be as follows: "1. That the Sumter was furnished with an excessive supply of coal at Trinidad, which supply enabled her to inflict the subsequent injuries she did on the commerce of the United States." ^ We have here an application of the novel principle asserted in the third part of the Case. The arbitrators had here been told that " if, in these days, when steam is a power, an excessive supply of coal is put. into the bunkers " of a belligerent cruiser in a neutral port, the neutral government will, according to the general principles of international law, "have failed in the performance of its duty." They had been told that, in order to prevent this, the neutral government is bound to apply a " wakefulness and watchfulness proportioned to the exigencies of the case and the magnitude of the interests involved." The local authori- ties must, therefore, estimate with precision the quantity of fuel which will probably be necessary, taking into account the sailing qualities of the vessel, to bring her to her nearest port, and to watch with the ut- most jealousy lest she should procure more. For any failure in this^ respect, compensation in money is to be paid to the other belligerent by the neutral nation. The arbitrators are asked to affirm by their award this supposed rule of international law, and, in a case where a cruiser^ distant more than 1,000 miles from home, has purchased no more than eighty tons of coal in a neutral port, to charge the neutral nation with the value of all captures made by the cruiser, and the cost of fitting: out and keeping at sea all vessels that may have been directed to look after her. It must be conceded that this view of international law opens a suffi- ciently alarming prospect to neutral powers. Happily, it is as com- pletely erroneous in principle as it would be intolerably unjust in prac- tice. International law sets no limit to the quantity of coal which may be obtained by a belligerent cruiser in a neutral port. There is no such, thing, therefore, as an " excessive "' supply. Whatever such a vessel may require for repairing or renewing her sailing or steaming power,, may lawfully be furnished to her; supplies of arms or munitions of war,, repairs or alterations of her structure or equipment, serving to augment her warlike force and directly applicable to that purpose, she may [69] not lawfully receive. The general *consent of nations has drawn this line, and it draws no other.^ Even, however, if there had been any foundation for the pretended rule, what proof have the United States given that it was infringed? Where is the evidence that the supply of coal to the Sumter at Trinidad was more than enough to- 1 Page 327. = Page 324. 'The instructions of 1793 have already been referred to : "Equipments iu the ports of the United States of vessels of war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful uature, as being applicable either to commerce or war, are deemed lawful." " Equipments of vessels in the ports of the United States, which are of a nature solely adapted to war, are deemed unlawful." COUNTER CASE OF GREAT BRITAIN. 293 «arry her liome 1 There is none whatever. The Sumter procured coal at a port in a British colony, as she procured it before and afterward At Spanish, Dutch, Brazilian, and French ports; in fact, the quantity ■she received at Trinidad seems to have been less than she got at other places ; and it is clear that each of those powers is, according to the view of the United States, equally liable, as regards this vessel, to the •entire claim which they now make against G-reat Britain. If any ad- ditional fact could make the answer of Great Britain more complete it would be the circumstance that, in that part of the Sumter's cruise within which the coal she obtained at Trinidad was exhausted, she made not a single capture.^ The captures for which compensation is •claimed were made four months afterward, with the aid of coal procured, not at Trinidad, but at Martinique. 2. The remaining argument in support of this claim is, that the Sumter ought to have been compelled to leave Gibraltar, (where, according to the United States consul, he had himself made it, impossible for her to procure coal for navigation ;) and that she was transferred while in that port, by a sale which is alleged to have been fictitious, but which ap- pears from an intecepted letter produced by the United States to have been real.^ Whether it was fictitious or not, was a question into which it was not the duty of the British government to inquire, nor was it a matter of much importance to the United States. If the sale was real, the confederate government parted with the ship and got the money ; if it was merely nominal, they got no money but retained the right to the ship. How the circumstance that she lay in port, disarmed and without a crew, from January, 1862, to February, 1863, or the- sale of her in December, 1862, to a real or nominal purchaser, could have ena- bled her to make prizes in the year 1861, is not explained to the arbitra- tors. All her captures having been previously made, the United States suffered no loss in consequence of anything which happened after she entered the port of Gibraltar. Even if this had been otherwise, in what respect do the facts alleged by the United States involve any failure of neutral duty '? Orders were issued by Her Majesty's govern- ment, on the 30th of January, 1862, that, if any ship of war or privateer of either belligerent should after the time when the orders should be iirst notified and put in force in the United Kingdom or in any colony «r dependency of the Grown, enter any port, roadstead, or waters of the United Kingdom, or of any such colony or dependency, she should be required to depart within twenty-four hours, or, if in need of supplies ■or repairs, as soon as possible after the expiration of that period. The Sumter reached Gibraltar several weeks before these orders had been ■either notified oj; issued. The orders were therefore violated, (it seems to be argued,) to the detriment of the United States, by suffering her to remain in port even when disarmed and without offlcers or a crew. Her Majesty's government is unable to follow this train of reasoning. It cannot be admitted that this government was under any obligation to enforce orders different from those which it had made, and inflict on a vessel, actually in a British port, the injustice of subjecting her to the operation of an extremely stringent rule, of which she could have had no notice when she entered, and which, if enforced against her, would have exposed her to certain capture or destruction. "The sale," it is added, "was a palpable evasion." "The purchase of •ships of war belonging to enemies is held in British courts to be invalid." ' Appendix to Case of the United States, vol. vii, p.- 214. aibid., p. 71. 294 TREATY OF WASHINGTON. It may be presumed that what the Government of the United States wishes to express is, that a purchase [flagrante hello) of a belligerent ship of war by a neutral, in a neutral port, has been held invalid. This is declared to be a " simple proposition." It is really very simple, and yet in the Case of the United States it seems to be misunderstood, so as- to introduce a confusion as to the relative rights of belligerent and neutral. The sale of a belligerent ship of war, cooped up by an enemy in a neutral port, has been adjudged in a prize court of that enemy to be invalid ; that is, ineflfectual to transfer the ownership of the ves- [70] sel from the belligerent to a neutral, so as to relieve *her from the risk of capture.' This was never denied by Earl Eussell, nor is it questioned by Her Majesty's government. But the transaction,, though invalid as against the enemy, is not illegal; it violates no law, and calls for no interference on the part of the neutral government.. Within the neutral jurisdiction, indeed, it is, if not prohibited by the local law, a perfectly valid sale, conveying to the purchaser a title to the ship, which could be displaced only by a regular sentence of con- demnation in the enemy's country. If, after the sale of the Sumter, the British government had protected or' undertaken to protect her at sea, as a British ship, against capture by the United States, the latter would have had just cause of complaint. But Earl Eussell, instead of under- taking to do this, expressly disclaimed, in his note to Mr. Adams of the 15th January, 1862, any intention of doing so. " Her Majesty's naval and military officers at that port (Gibraltar) have received instructions not to give any protection to that vessel beyond the waters of Gibral- tar." He gave Mr. Adams all that Mr. Adams asked— certainly all that he had any right to ask.^ The Sumter quitted Gibraltar unarmed and unprotected from capture. She was exposed to capture all the way to Liverpool. She was exposed to it when, as a freight-carrying vessel under the British flag, all her warlike fittings having been carefully removed, she left Liverpool for a port of the Confederate States. She appears to have escaped it only through the fault of the United States cruisers which had been directed to take possession of her; and, because these cruisers failed to execute their orders. Great Britain is now called upon to pay for the expenditure incurred in respect of them, as well as for prizes the Sumter had previously made when commissioned as a ship- of war. It may here be observed that, when the United States minister in London was arguing that the sale of the Sumter ought to be prohibited in Gibraltar, the United States minister at Madrid had admitted that it might be allowed to take place in Cadiz. In a conversation with M. Calderon Collantes, on the 10th of January, 1862, which Mr. Perry after- ' This, and no more, was decided by Lord Stowell, in the case of the Minerva, Robin- son's Admiralty Reports, vi, 396. It is said in the Case of the United States (p 322) that, "after reflecting upon this simple proposition for more than five weeks. Earl Russell denied it." Earl Russell did not deny it ; he pointed out the misappreheiisiott of it into which Mr. Adams had fallen ; and the decision that the Sumter was not to be protected, when out of British waters, had been announced and conveyed to the officers of the government at Gibraltar more than three months before. (See British Case, p.. 19.) - Mr. Adams had asked " the assistance of Her Majesty's government to prevent any risk of damage to the United States from a fraudulent transaction in one of her ^orts ; or, in default of it, of declining to recognize the validity of the transfer, should that, vessel subsequently be found by the armed ships of the United States sailing on the high seas." (British Case, p. 19.) COUNTEK CASE OF GREAT BEITAIN. 295 ■ward reported to his own Government, the latter said, speaking of this vessel : If they did not choose to go out to sea again, as they had entered, thev might stay under the protection of the Spanish flag ; and indeed their ship, if she should he sold out of their possession into honest hands, or leave all her armament and munitions of war, laying aside all pretensions to being a war vessel or a privateer of the so-called Confederate States or of anybody else, returning really and honestly to her former condition of a merchant steamer, might perhaps be liable to capture by the Navy of the United States, but she might then be repaired in* Cadiz without contravening the loyal decree of June IT.' THE NASHVILLE. The case of the Nashville must fall with that of the Sumter. The supposed failure of international duty which is alleged against Great Britain in respect of the Nashville is merely this : that, having been armed and commissioned as a ship of war in a confederate port, she was, on three different occasions, admitted into British ports and suifered to coal there. In the Case of the United States we are told that " she took on board," at St. George's, Bermuda, " by permission of the governor, 600 tons of coal, and this act was approved by Her Majesty's principal secretary ofstatefor the colonies." By the "act" is probably meant the sup- posed permission of the governor. No act appears to have been done by the governor, and no permission asked or granted ; but he appears (whUe refusing to assist the commander of the ship to obtain coal by purchase from the government stores) to have made no objection to his frocuring it from private dealers, and to have placed no restriction on the quantity. No order imposing any restriction had then (October, 1861) been issued by Her Majesty's government, nor by any other [71] neutral power ; *and no restriction was or is imposed by any rule of international law. No complaint as to the quantity supplied was made at the time. The amount actually shipped by the Nashville was between 400 and 500 tons.^ At Southampton the Nashville was allowed to coal, the United States ship Tuscarora being allowed to receive a supply at the same time. On her return to Charleston, she again touched at Bermuda, and obtained, from a British merchantman in that port, coal enough to assist her on her return voyage. The decision that depots of coal should not be formed in the island for the use of the cruisers of either belligerent, did not pro- hibit this act, as it did not afterward prevent United States ships of war from obtaining at Bermuda, on two or three occasions, like supplies when necessary. " She left," it is said, " under the escort of Her Maj- esty's steamer Spiteful." What is thus described as an " escort " was in truth only a necessary measure of precaution adopted by the admiral on the station. "As, when she sailed, there were several vessels in sight, some of which might have been United States, I thought it advisable," wrote Admiral Milne, " to send the Spiteful outside, to insure respect being paid to our territorial limits."' J See Appendix to British Case, vol. vi, p. IIO. - See Appendix to British Case, vol. v, p. 14. ^Apperiaix to British Case, vol. ii, p. 127; vol. v, p. 2. The following are the in- structions ivhich were given by Admiral Milne to the commander of the Spiteful on the occasion : "You are hereby required and directed to put to sea forthwith, in the sloop under your commaid, and proceed outside on the coast of these islands, with a view of pre- venting the confederate steamer Nashville, now about to leave the harbor of Saint 296 TREATY OF WASHINGTON. Her Majesty's government has deemed it respectful, ■ as well to the United States as to the arbitrators, to examine the claims made in re- gard to these two vessels, and the reasons which have been produced to justify them. But Great Britain may surely, with some justice, com- plain of being called upon to meet, before a tribunal of arbitration, de- mands as to which the sole difficulty consists in treating them as serious, and in discovering how the arguments employed can be imagined to lend them any support whatever. George's, from interfering in any way whatever -with vessels of any nation so long as they are within three nautical miles of the shore of the Bermudas and their reefs. As soon as the Nashville is out of sight, you will return to anchorage. " Given under my hand, on board the Nile, at Bermuda, 23d February, 1862. (Signed) "ALEX. MILNE. " To W. C. F. Wilson, Esq., " Commander of Spiteful. -" By command of commander-in-chief. (Signed) "S. T. SUCTEE, "Fro Secretary." m * P A R T VI. THE FLORIDA AND ALABAMA. In the Case of Great Britain, the facts relating to the Florida, Ala- bama, Georgia, and Shenandoah, were stated in consider- p^„^ vi.^me able detail. The building of each of these vessels, her rioridaandAiab.raa. original departure from this country, and the circumstances under which she received her equipment, and was armed, manned, and fitted out for war, were presented to the arbitrators as accurately and fully as Her Majesty's government was enabled to present them by the means of in- formation at its command ; while so much of the documentary evidence, whether favorable to Great Britain or not, as appeared material to a just adjudication on the questions at issue, was included in the Case. The facts which were in the possession of the British government at the time when the events respectively took place, whether brought to its knowledge by the minister of the United States or ascertained by inde- pendent inquiry, were, in this recital, kept distinct from facts whicli did not become known till afterward. The general course of conduct pur- sued by the government, in respect of equipments or apprehended equip- ments of ships of war within its jurisdiction, was at the same time islaced before the tribunal, and attention was invited to those cases in which the means of prevention employed proved effectual, as well as to those in which they failed. The method of statement adopted in the Case of the United States is, in some respects, different. Circumstances known at the time, and many •others not known till afterward, are there arranged without distinction in chronological order, so as to form a consecutive story, while, at the same time, no clear line is drawn between facts which are substantiated and those which the Government of the United States merely thinks or suspects to be true. Assertions resting only on the belief of an American consular officer in a foreign port, on a report transmitted by him that they were currently believed there, or on information said to have been received by him from anonymous persons, are freely introduced into the narrative as if tbey were ascertained facts. Her Majesty's government does not complain of this mode of state- ment, which has doubtless been adopted for sufficient reasons. But it manifestly imposes on the arbitrators the duty of distinguishing for themselves between allegations which are proved and allegations which are not proved, and between facts which are and facts which are not justly to be taken into account as supporting or contributing to support a charge of negligence against Great Britain. They have to be satisfied, not only that acts were done which it was the duty of this government to use diligence to prevent, but that such diligence was not in fact ex- erted; and of this they have to be satisfied, not by assertion only, but by proof. It has been observed in the Case of Great Britain that, in countries 298 TREATY OF WASHINGTON. -where (as in Great Britain) the executive is subject to the laws, foreign states have a right to expect that the laws should be such as, in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of acts which the government is under an obligation to repress, and, further, that the laws should be enforced and the legal powers of government exercised, so far as may be necessary for this pur- pose. But it was added that, where such laws exist, foreign states are not entitled to require that the executive should overstep them in par- ticular cases, in order to prevent harm to foreign states or their citizens, nor that, for this purpose, it should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. The principle which these propositions convey is of supreme importance to all nations in which the paramount dominion of law is recognized, the protection which it secures to civil and political liberty valued, and the executive not intrusted with large and arbitrary powers. On no other terms, indeed, could such states undertake to subject themselves to any international obligations whatever. No constitutional state could reasonably be assumed Ito have engaged to break through or set aside its laws, in the interest of foreign nations, whenever an occasion [73] might arise for which the laws were found to have imperfectly* pro- vided beforehand. It has been further shown that the law of Great Britain, as it existed at the time when these occurrences took place, were such as, in the exercise of ordinary foresight, might reason- ably be deemed adequate for enabling the government to discharge its obligations as a neutral power. It has appeared, also, that the powers which the government possessed, to prevent fitting out, arming, and equipping within its jurisdiction of vessels intended for the naval service of the Confederate States, or the departure, with that intent, of vessels specially adapted within its jurisdiction to warlike use, were defined and regulated by law; that the law provided certain modes of preventioiif and required, before authorizing the condemnation of a suspected vessel, that the facts alleged against her should be capable of proof; and that the government had in no such case any power of seizure or detention, except with a view to a subsequent condemnation in due course of law, and on the ground of an infringement of the law sufficient to warrant condemnation. By proof, it was added, in a British court of law, is un- derstood the production of evidence sufficient to create in the mind of the judge or jury (as the case may be) a reasonable and deliberate belief of the truth of a fact to be proved, such as a reasonable person would be satisfied to act upon in any important concerns of his own. And by evidence is understood the testimony, on oath, of a witness or witnesses, produced in open court, and subject to cross-examination, as to facts Avithin his or their personal knowledge. Testimony which is mere hear- say, as to the existence of common reports, however prevalent and how- ever generally credited, or as to any matter not within the knowledge of the witness, is not admitted in an English court.i These rules, which in England have been deemed expedient for securing the due adminis- tration of justice, may not be regarded as necessary in some other coun- tries. But there was clearly nothing in them which could be supposed to be inconsistent with the dictates of natural justice; and, this being so, it was the right of Great Britain to adhere to and apply them in all cases arising within her jurisdiction, as it would be the right of Italy, ' British Case, p. 51. COUNTER CASE OF GREAT BRITAIN. 299 of Switzerland, of Brazil, or of the United States to apply respectively in corresponding cases their own rules of procedure and evidence. While, therefore, the obligation to use due diligence iu order to pre- vent certain acts from being committed within the jurisdiction of the sovereign Is an obligation wholly independent of municipal law, it is at the same time incontrovertibly true that, in determining the question whether due diligence has been used iu a given case, the municipal law of the particular country, the modes provided for enforcing it, the powers vested in the executive, the established rules of administrative and judicial procedure may be, and commonly are, matters which it is proper and material to take into account. The failures of duty which the United States impute to Great Britain, in respect of the Florida, Alabama, Georgia, and Shenandoah, consist partly in an alleged want of due diligence in preventing the original equipment of those vessels and their original departure from Great Britain, and partly in the hospitalities afterward afforded to them in British ports, where, it is insisted, ttiey ought to have been seized and detained. THE FLORIDA. The history of the Florida divides itself into three parts, the first ending with her departure from Great Britain; the second with her release at Nassau ; the third including her subse- quent equipment, her arrival at Mobile, and her cruise after leaving Mobile. The first part of this history, as told in the Case of the United States, is as follows:^ The Florida was built to the order of Bullock, an agent of the confederate government. The contract for building her was made with one manufacturing firm and sub-let to another. It was made iu the autumn of 1861, and was completed by February, 1863. She waited for the arrival of Bullock and four other confederate officers, " who were to take commands in the vessels which were contracted for in Liverpool," and sailed soon afterward, consigned to Heyliger, a con- federate agent at Nassau, or to Adderly & Co., merchants, resident there. Her armament was at the same time prepared at Liverijool, sent thence to Hartlepool, and shipped on board a steamer, called the Bahama, for Nassau. "It was a matter," the tribunal is told, " of public notoriety that this was going on. All the facts about the Florida, and about the hostile expedition which it was proposed to make against the United States, were open and notorious at Liverpool." The inference is, that all the facts which are stated in the Case were, or ought to have been, known to Her Majesty's government; that the government knew, or ought to have known, of the contract with Bullock; that it knew, or ought to have known, of the arrangements for arming the ship, since these thing's were generally known in the place where the events [74] occurred. * Where is the proof of these assertions ? Where is the proof that even the American consul at Liverpool, whose activity iu hunting for secret information appears to have been inde- fatigable, and to whom every one resorted who had information to dis- close, knew of the contract with Bullock, or of the dispatch, cargo, aud destination of the Bahama? And if he knew them, why did he not either communicate his knowledge, and the proofs in his possession, to ' Case of the United States, pp. 332 et seq. 300 TREATY OF WASHINGTON. the British government, or himself lay an information on oath against the ship f It is clear that Mr. Dudley himself was in ignorance of the facts which, in the Case of the United States, are asserted to have been open and notorious to all. His attention had been called to the Florida, then in the builder's yard, as early as November, 1861. On the 24th Janu- ary, 1862, he writes that "she is ret)orted for the Italian government;" but the fact of the machinery being supplied by Pawcett & Preston, and other circumstances, make him " suspicious," and cause him to be- lieve she is intended for the South.^ On the 4th February the circum- stances are still "somewhat suspicious." "There is much secrecy ob- served about her, and I have been unable to get anything definite, but my impressions are strong that she is intended for the southern confed- eracy. I have communicated my impressions and all the facts to Mr. Adams, our minister in London." At that moment the ship was taking in her coal ; and " appearances indicate," he wrote, " that she will leave here the latter part of this week."^ He makes, however, no representa- tion to the government, nor does Mr. Adams make any. On the 12th he writes to Mr. Seward that everything he sees and hears confirms him in the belief that the vessel is intended for the confederacy ; but he men- tions no fact, except that Miller (the builder) had said that Fawcett, Preston & Co. gave him the contract. Still no representation is made. On the i7th he has " obtained information, from many different sources," which "goes to show" that she is intended for the Confederate States. ^Nevertheless, the solitary fact mentioned is that Fawcett, Preston & Co. are said to be the owners, with the addition that advances are said to have been made to them and to Miller by Fraser, Trenholm & Oo.^ Af- terward he tells Mr. Seward that he has "no doubt," and has " positive evidence," that she is "for the South;" and, on the 5th March, that two persons in the employ of Fawcett, Preston & Co., had said so.* But, up to the time when she left Liverpool, his correspondence mentions not a single circumstance proving, or tending to prove, for what purpose she was intended, beyond some rumors as to her probable movements, which turned out to be erroneous. With the " notorious fact" that she had been ordered by Bullock he is evidently quite unacquainted.' As to the Bahama, so far is he from being aware of the "notorious fact", that she was about to take out the Florida's armament, that up to the Cth March he is making fruitless inquiries about that vessel, and can obtain no information about her, or any vessel of that name.^ Several days afterward he learns that she is loading with cannon and other mu- nitions of war at Hartlepool, and ^^will either run the blockade, or land her cargo at Bermuda or Nassau, and have it ferried over in smaller ves- sefe."^ He believes her, in short, to the last, to be merely a blockade- runner, laden with articles contraband of war, and has no idea of her having any connection with the Florida. Here, then, we have Mr. Dudley's confidential correspondence with his official superior. We find him quite in the dark as to the main ' Appendix to Case of tbe United States, vol. vi, p. 214. - Ibid., p. 215. ■> Ibid., p. 216. •> Ibid., pp. 220, 221. t^Mr. Seward had, however, informed Mr. Adams, in August, 1861, that Bullock was said to be in Europe, and to have contracted for ten war steamers, (vol. vi, p. 33.) According to the Case of the United States, Bullock was in the Confederate States from the autumn of 1861 until immediately before the Florida sailed, (p. 334.) " Case of the United States, vol. vi,'p. 222. ' Ibid., p. 223. COUNTER CASE OF GREAT BRITAIN. 301 facts which are relied on in the case of the United States, and declared to have been perfectly open and notorious at Liverpool, but laboriously picking up scraps of secret information, till he arrives at a confident opinion, respecting the grounds of which he is silent. But it may here be observed, by the way, that Mr. Dudley, though he appears to have been an intelligent and painstaking offlcer, was often confident of facts as to which he was entirely mistaken. We now perceive what is the value of the assertion, so frequently occurring in the case, that facts alleged therein were open and noto- rious, and, therefore, must or should have been known to Her Majesty's government. In truth, these open and notorious facts do not appear to have been discovfered till long afterward, even by the industrious re- searches of the Government and subordinate officers of the United States. [75] *Let us now recall what was known to the British government. This has been fully and accurately stated in the Case of Great Britain.^ The first representation made to Earl Russell was received on the 19th Pebruary, three months after the time when Mr. Dudley's attention was first directed to the ship. We have seen that it conveyed no in- formation whatever on which a government could act. Fawcett, Pres- ton & Go., who gave the contract to the actual builder, were a firm car- rying on an extensive trade. It was said that on a previous occasion they had been concerned in a shipment of arms for the Confederate States, and it was further stated that money had been advanced to them, and to the builder, by Fraser, Trenholm & Co. It is evident that these circumstances, even if they had been verified, could produce no more than a bare suspicion. Mr. Adams, it is true, said that, should further evidence be held ne- cessary, he would " make an effort to i^rocure it in a more formal man- ner." All that Mr. Dudley knew was known to Mr. Adams. Does he, then, when the results of the inquiries directed bytjie government were communicated to him on the 26th February, more than three weeks before the sailing of the ship, hasten to furnish the government with the proofs which the latter had been unable to obtain for itself ? No; he remains silent until the 25th March, after the shii) has sailed. Either he had information on which the government could act and did not im- part it, or he had none. It is not very material which branch of the alternative is true; but, from the fact that no information possessed by him at that time has ever been produced, as well as from the whole tenor of Mr. Dudley's correspondence, we may assume that the truth lies in the second. It is to be borne in mind that this was the first case (with one excep- tion) in which a representation of this kind was made to the British government. It cannot, therefore, be pretended that Mr. Adams was discouraged or deterred from furnishing information by any previous neglect or refusal to act on the part of the Government. The only case which had occurred before was that of the Bermuda, in which Mr. Adams, though he "believed" and was "morally certain" that the vessel was to be used for war, proved to be mistaken.^ What the government did on receiving Mr. Adams's representation is stated in the British Case. Inquiry was instantly directed, but no in- formation whatever could be obtained tending to connect the vessel in ' Pages 53 et seq. 2 Appendix to British Case, vol. ii, p. 133. 302 TREATY OF WASUINGTON. any way with the Confederate States. She was declared by the builder to be ordered for a firm at Palermo, a member of which was registered, on his own declaration, as her sole owner, and had frequently visited her when building. She had on board no arms or military supplies. The statement, at page 242 of the Case of the United States, that she had guns on board, is erroneous.^ Her first destination, as stated in her clearance, was Palermo, and her crew were nominally (and, as they evidently believed, really) hired for a mercantile voyage. On the one hand were the positive statements of the builder, the registered owner, and the collector of customs ; on the other, the suspicion of Mr. Dudley that the vessel was still intended by her owner to pass, sooner or later, into the hands of the confederate government. But a suspicion is one thing, reasonable grounds of belief another; and the British govern- ment, while it would have been bound to act on a reasonable belief that there was a present fixed intention to employ her as a confederate ship of war, was neither bound by international duty nor empowered by its municipal law to act on a bare suspicion that she might pass into that employment. The circumstances that occurred between the arrival of the Florida at Nassau, on the 28th April, 1862, and her departure thence on or about the 7th August following, have been inaccurately and imperfectly stated in the Case of the United States, and, as Her Majesty's government be- lieves, accurately in that of Great Britain. It is not correct that the United States consul, soon after the arrival of the vessel at Nassau, " called the attention of the governor to her well-known character," and that the governor declined to interfere.^ The United States consitl, after mentioning the arrival of the ship, rep- resented that it was believed and reported by many residents in the place "that she is being prepared and fitted out as a confederate pri- vateer;" and he requested that some inquiry might be made to ascertain how far she was "preserving the strict neutrality" enjoined by the Queen's proclamation. ^ He was immediately answered that inquiries should be made. They were made accordingly, and the consul was in- formed (as the fact was) that no attempt had been or was being [76J made to arm the ship. T-he governor did *not " accept the state- ment of the insurgent agents," of whom he knew nothing, and with whom he had nothing to do, but that of the mercantile firm to whom she was consigned, and who were the only persons known to have any connection with her, and the j)roper persons to refer to. She was not "permitted to remain at Cochrane's Anchorage" without effectual precautions being taken to prevent a violation of the law.* It is not correct that " a second request to inquire into her character was made on the 4th of June and refused." The consul, on the 4th June, inquired whether steps had been taken to ascertain her character, and was answered in the affirmative. The governor " had directed steps to be taken to ascertain whether there was anything in the equipment or character of the Oreto which could legally disentitle her to the hospi- talities of the port."^ She was not arrested on the 7th June, nor was she released on the arrival of Semmes in the island ; nor does it appear that the Bahama was arrested, or that the latter vessel was ever made 'This error is probably due to an oversight arising from a misoouceptioii as to tlie meaning of certain blanks in a common printed form of clearance. (See Case of Great Britain, pp. 56, 57.) ' Case of the United States, p. 341. ' Appendix to British Case, vol. i, p. 14. •• British Case, pp. 61, 62 ; Appendix to ditto, vol. i, pp. 16, 16. 5 Appendix to British Case, p. 20. COUNTER CASE OF GREAT BRITAIN. 303 the subject of any complaint. Lastly, it is said that the consul, finding his representations to the governor useless, " applied to Captain Hick- ley, of the Greyhound, and laid before him the evidence which had already been laid before the civil authorities. He answered by sending a file of marines on board the Oreto, and taking her into custody.'" This statement is wholly and completely unfounded, and is shown to be so even by the documents referred to. Captain Hickley seized the ves- sel on the 16th, upon the complaint of the sailors, who had been de- frauded by a deviation from the voyage for which they had been hired ; and on the 17th he renewed the seizure, with the sanction and authority •of the governor, who immediately gave direction that proceedings should be instituted against her in the vice-admiralty court of the colony.^ On neither occasion does it appear that Captain Hickley had any commu- nication with Mr. Whiting. The consul did, however, subsequently address to that officer a letter, which would alone have been sufiicient to justify any government in withdrawing his exequatur, an impropriety for which he received a merited reproof.'' It cannot be denied, on the part of the United States, that the Florida was seized while at Nassau, on charge of a violation of the foreign- enlistment act ; that proceedings were, by the governor's directions, instituted in the proper courts, with a view to her condemnation ; or that, after a regular trial, she was ultimately released by a judicial sen- tence. But, in order to destroj' or diminish the effect of these proceed- ings, attempts have been made, in the Case of the United States, to attack the character and integrity of the colonial authorities, and im- pute to the principal law-officer of the colony deliberate dishonesty in the discharge of his official duties. On the pretext that in other matters he had acted professionally as advocate for the mercantile house who were consignees of the vessel, he is accused of having, as counsel for the Crown, so conducted the case intrusted to him as to secure its defeat, from motives of private interest or partiality ;* of having neglected to <;all witnesses who could prove the facts, and managed his cross-exam- ination of witnesses for the defense so as to suppress important evidence ; and, lastly, of having intentionally hurried on the trial before evidence could be obtained from England. " Her Majesty's government," the arbitrators are told, " evidently considered that it would be relevant and proper to show the condition of the vessel when she left Liverpool ; and should it appear,- as it did appear, in Captain Hickley'a testimony, that at the time of her leaving she was fitted out as a man-of-war, with in- tent to cruise against the United States, then it would be entirely with- in the scope of the powers of the court in Nassau to condemn her for a violation of the foreign-enlistment act of 1819. Had the trial not been hurried on, such probably would have been the instructions from Lon- don.'"^ Her Majesty's government thinks it right to say that there is not the shghtest foundation for these imputations. There is no reason what- ever to suppose that the trial did not come on in regular course, or that the case was not properly conducted on the part of the Crown. That the counsel for the Crown should have refrained from calling witnesses whose interests were strongly on the side of the defense needs no ex- planation to any one acquainted with the rules of English judicial pro- 1 Case of the United States, p. 342. 2 Appendix to British Case, vol. 1, pp. 23, 27. = lbid., p. 28. * Case of the United States, p. 344. 5 Ibid., p. 347. 304 TREATY OF WASHINGTON. oedure, since, according to those rules, the party who calls a witness is in general precluded, should the evidence which he gives be unfavor- able, from impeaching the witness's credibility ; nor can he compel him to answer any questions which would expose the witness to a penalty, or to prosecution for any offense against the law. The evidence of Capr tain Hickley neither did, nor possibly could, prove anything as to the extent to which the vessel had been fitted out when she left Liverpool, It is perfectly true (and was, indeed, explicitly stated in the [77] British Case) *that the exclusion of evidence relating to acts done while the ship was at Liverpool was, in the opinion of Her Maj- esty's government, an erroneous ruling on the part of the judge. But the question was at least open to reasonable doubt, and it can hardly be necessary to inform the arbitrators that it is not in the power of Her Majesty's government to "instruct" a judge, whether in the United Kingdom or in a colony or dependency of the Crown, how to decide a particular case or question. No judge in Her Majesty's dominions would submit to be so instructed ; no community, however small, would toler- ate it; no minister, however powerful, could ever think of attempting it. In the following extract from a report transmitted by the adminis- trator and attorney- general of the colony these charges are completely disposed of: The charges are ranged under the followiug heads, page 343 : That the attorney- general hurried on the trial before evidence conld be obtained from Liverpool ; that he conducted the cross-examination so as to suppress evidence unfavorable to the Oreto, and that certain named witnessed who could have shown that the Oreto was built for the insurgents, and was to be converted into a man-of-war, were not called as they ought to have been ; and there is a general charge prevadiug the foregoing, and otherwise specially stated, of misconduct on the part of the attorney-general. Taking these seriatim, they are as follows : First, that the trial was carried on before evidence could be obtained from Liver- pool. The answer to this is, that the vessel was proceeded against only for acts of equipment alleged to have taken place within the li.mits of the Bahama Islands. It was cousidered, whether rightly or wrongly, that the point was settled by the decis- ion in the case of the Fabius, (2d 0. Rob., page 245,) which was au appeal from the identical court, the vice-admiralty court of the Bahamas, and in which it had been decided that vice-admiralty courts had uo jurisdiction to take" cognizance of offenses committed out of the limits of their local jurisdiction, and that prosecutions under the foreign-enlistment act were not within the sixth section of 2 Will. 4, o. 51, which gave an extended jurisdiction to that court in certain specifled cases, a position which may be considered as affirmed by the legislative action which has been taken on the point by the British legislature in the vice-admiralty court acts, 26 Vict., cap. 24, section 13. This being the conclusion arrived at, it was not considered necessary, in fact it was never suggested, that evidence could be obtained from England; but it was consid- ered that the evidence of the mate and crew of the Oreto, combined with that of Cap- ftin Hickley and the other naval officers, was sufficient to show the animvs with which the vessel was dispatched from Liverpool and her adaptation for warlike purposes; and this is admitted in the case, as, at page 343, the following paragraphs are found: " The judge, in deciding the case, disregarded the positive proof of the character, in- tent, and ownership of the vessel." And again: "The overwhelming testimony of Captain Hickley and his crew was summarily disposed of." And again : " While thus ruling out, either as false or irrelevant, evidence against the vessel which events proved to be true and relevant, he gave a willing ear of credence to the misstatements of the persons connected with the Oreto ;" allegations that completely relieve the prosecuting officer of the charges brought against him at page 344, and throw the onus of failure on the judge, thus producing in the short space of two pages contradictory accusations against two offiicere of the government, the one of which, if well founded, would aftord complete refutation to the other. Secondly, that the attorney-general conducted the cross-examination so as to sup- press evidence unfavorable to the Oreto when it could be done. aitT'^'u '^ ? charge which can only be met with a positive and indignant denial. Whether the cross-examination was conducted skillfully or not is, of course, another question, which must be judged of from the examinations forwarded. Thirdly, the neglect to summon witne.ses who could have given material evidence, COUNTER CASE OF GREAT BRITAIN. 305 m& especially the omission to examine Maffit, Heyliger, and Adderley. Now, if the allegations _m the United States Case are well founded, each of these persons was parUcepsonmims m the equipment of the Oreto, and was liable to be proceeded against onmmally for a misdemeanor, and, on conviction, to be punished by fine and impris- onment, and, therefore, they could not have been compelled to give evidence leading to the condemnation of the vessel for acts of equipment within the colony, which would necessarily have tended to criminate themselves, and, consenuently it never entered into the minds of the attorney-general or of Captain Hickley, who was in daily consultation with that ofdcer, to attempt to examine those parties, nor any other persona in the supposed service of the Confederate States. The existence of such per- sons as Evans and Chapman, *ho are named at page 345 of the Case, was entirely unknown to the attorney-general, and also, it is believed, to Commander Hickley who never named them to that officer. One important witness, and one only, was lost to the prosecution, namely Jones, the boatswain of the Oreto, who had originally given the information to Commander Hickley which mainly led to the arrest of the vessel. He disappeared before he conld be examined, and was supposed to have been induced by persons in the interests of the vessel to go away. Diiguid, the master of the Oreto, was, as will be seen on reference to his examina- tion, questioned on the point, but he particularly denied all knowledge of the move- ments of the man. With the exception of Jones, every one was examined who could have been com- polled to give evidence, and Jones was only not examined because he secretly removed himself from the jurisdiction of the court. Another very great misstatement with respect to the trial of the Oreto is made at page 345. It is there stated that the cross-examination of Captain Hickley was con- ducted by a gentlemen who was represented to be the solicitor-general of the colony, but who in that case appeared against the Crown. From the foot-note (2) this state- ment would appear to have been made on the authority of Consul Kirkpatrick, and, if so, it proves that little reliance is to be placed on that person's statements. Mr. B. L. Burnside, a barrister of Lincoln's Inn, was the counsel referred to, and at the [78] time (1862) *he held no office whatever under the Crown ; and the United States Government have, through the errors of their informants, confounded the case of the Mary or Alexandra, tried in 1865, with that of the Oreto in 1862. In May, 1864, Mr. Burnside, however, was appointed solicitor-general, and at the time of the seizure of the Mary he held that office, when, being employed in that case as counsel for the claimant, he cross-examined Captain Preston, of the British navy, a witness produced for the prosecution ; but, on the fact becoming known to the governor that the solici- tor-general was so employed, he was called on either to give up his brief or resign his office, and he chose to do the latter. In concluding the remarks on this part of the Case of the United States, it is confi- dently submitted that the arrest and trial of the Oreto at Nassau was a J)ona-fide pro- ceeding.' The vice-admiralty court of Nassau was a court of competent juris- diction ; the authorities of the colony were bound to pay obedience to its decree ; and, as soon as it was pronounced, the persons claiming the possession of the vessel were entitled to have her immediately released., She was released accordingly, and sailed from ISTassau unarmed, having cleared as a merchant steamer, and with a crew hired in the port, and hardly sufficient to navigate her, on or about the 7th August, 1862. The hiring of seamen at Nassau could not have been treated as an oflense against law, since there was nothing to show that they were intended for the service of the Confederate States. Nor does it appear that they were, in fact, enlisted for that service.^ ' Appendix to British Case, vol. v, p. 19. ''It is stated in the Case of the United States, as if it had some importance, that the Florida lay outside with a hawser attached to one of Her Majesty's ships of war. The simple explanation of this trivial fact is as follows : The Peterel, a Queen's ship, was then lying in the harbor, and two United States ships of war were also there. The commander of the Peterel, at the governor's request, crossed the bar to offer these ves- sels the customary hospitalities of the port, which they declined, proceeding soon afterward to sea. The Peterel remained anchored outside the bar, in consequence of the lateness of the hour or the state of the tide. A boat soon afterward came to her from the Florida, (then known as the Oreto, and under British colors,) with a request, of which the following account is given by the officer who was then in command of the Peterel : "A man, who stated he was the master in command of the Oreto, said he was very short-handed, and wanted to anchor for about two hours to adjust his machinery, but 20 A— II 306 TKEATY OF WASHINGTON. It is afarmed in the Case of the United States that the Florida, aftw quitting Ifassau, Tvas armed for war, by means of a vessel which accom' panied her from that port, at one of the Bahama Islands, and, there- fore, within British waters ; and, in proof of this, several depositions are produced, purporting to have been made by common seamen and others who were hired to assist in the work. From these it would ap- pear that, before the Florida sailed, a schooner, called the Prince Alfred, carrying as cargo some guns and ammunition, together with other sup- plies, put to sea from Nassau, as though with' the design of running the blockade ; that she was overtaken by the Florida about three houjs after the latter had left the harbor, and that both vessels proceeded to a place called Green Cay, where the cargo of the Prince Alfred was transferred to the Florida, an operation which lasted several days. The latter (which up to that time had been known as the Oreto) then hoisted the confederate flag, and assumed the name under which she has since been known. The Prince Alfred did not for some time return to IS^as- sau, her captain being apprehensive that she might be seized for a vio- lation of the law in assisting to arm and fit out the Florida in British waters. - Her Majesty's government has not the means of either verifying or disproving the truth of this statement. Assuming it to be true, there can be no doubt that a violation of the sovereignty and neutral rights of Great Britain was committed by the commander of the Florida. But the fact that such a violation occurred does not argue negligence on the part of Her Majesty's government. It took place, indeed, in British waters, since the whole group or chain of islands known by the name of the Bahamas are held to be under the dominion of Great Britain. But of these islands, which number several hundred, and are scattered over a wide surface, all but a very few are desolate and uninhabited, and many are mere rocks or islets. Green Cay (which, if we may trust the testimony of the deponents, was the spot selected for this transact tion) is a small, uninhabited island, lying sixty miles or more south of Nassau, on the edge of what is called the Great Bahama Bank, and visited, as Her Majsty's government believes, only by fishermen. [79] *]Srentral powers have never been held responsible for violations of their territory committed in remote and unfrequented places, where no effective control could be exercised ; and it is certain that,. over such a dominion as the Bahamas, no government could reasonably, be expected to exert such a control as to prevent the possibility that acts of this kind might be furtively done in some part of its shor(B& or waters. The Prince Alfred sailed from Nassau as any vessel intended to run the blockade might have done, while the Florida was still lying in the harbor ; and there appears to have been no circumstance within the if he anctored outside he had not sufficient crew to weigh his anchor, and begged I would assist him by lending him men. I declined lending him any men ; but told Moi he might hold on astern of the Petrel, and I would give him a line for that purpose. ' "About 6.30 or 7 p. m., having seen the Oreto fast, holding on by one of our hawsers,. I went down to dinner ; and when I came on deck again she was gone. "I had told the master that she must go out of our way before the tide started. " This small act of courtesy I considered a duty that I should have extended to any ship, British or foreign, and, until the receipt of your communication, never gave it a second thought ; in tact, I must have thought it too trivial to mention in my letter of proceedings which at that time were full of matter of the greatest interest. "In conclusion I may remark that the only reason I had for refusing to send men on board was in consequence of the prevalence of yellow fever in the merchant ship- ping at Nassau, and I had prohibited all communication, so far as practicable, with them." COUNTER CASE OF GREAT BRITAIN. 307 knowledge of the authorities of the colony to direct special attention to the natnre of her cargo, to disclose her errand, or furnish a reason for detaining her. No complaint on the subject was made before she sailed by the. consul of the United States, though it is now alleged that the purpose for which she went was " notorious" in ISTassau. Subsequently, on the 8th September, 1862, when the Prince Alfred was again at the port, the consul informed the governor that he had good authority for stating that this vessel had placed the Florida's armament on board her at Green Cay, and that the Prince Alfred's captain was again shipping men to be sent to the Florida. The governor replied that if sufftcient evidence could be placed in the hands of the attorney-general to sub- stantiate this allegation, he would direct a prosecution to be instituted against the captain of the Prince Alfred or others who might have been guilty of violating the foreign-enlistment act. Upon this communica- tion the consul seems to have taken no steps whatever; and, although it has since appeared that he had previously procured a notarial decla- ration from some of the men employed on the Prince Alfred, the evi- dence thus obtained was never communicated or disclosed to the colonial authorities or to Her Majesty's government, until February, 1865, Cap- tain Maffit had at that time arrived at ISTassau in command of the mer- chant-vessel Owl, which had run the blockade, and the then United States consul made an application to the governor for proceedings against him on the ground that he had enlisted men in the colony for the Florida in 1862. This application was not received until after Capr tain Maffit had left l^assau, but the governor directed the attornej-- general to communicate with the consul, and the declaration of 4th September, 1862, above referred to, (which contained no evidence of enhstment,) was then produced for the first time.' The arbitrators are already aware that the Florida went from the Bahamas to Cuba, where she endeavored to ship a crew, and from thence (before making any prize or inflicting any loss on the United States) was carried by her commander into the confederate port of Mobile, escajjing capture through the remissness or incapacity of the oflBcer commanding the blockading squadron; that at Mobile she remained more than four months; that she was there fitted out and put in a condition for cruis- ing ; and that from thence she commenced her cruise. The crew which manned her during that cruise were enlisted at Mobile, and the greater number of them appear to have been transferred to her from a receiving- ship in that port. The history of this cruise has been briefly told in the British Case. It has been seen that she was admitted, during the course of it, into ports of the British colonies, of Brazil, and France; that at Brest she was suffered to remain during nearly six months repairing and refitting ; and that she was ultimately seized and carried away from a Brazilian port by a gross violation of the neutrality and sovereign rights ofBrazil.2 On the fact that she was permitted to enter ports within Her Majesty's colonial possessions, the United States have endeavored to support fur- ther complaints and further claims against Great Britain, for which there is no foundation whatever. It was not the duty of the British government to seize or capture the Florida when cruising under a com- mission from the government of the Confederate States; and the charges of partiality made in respect of this vessel are as groundless as those advanced in the cases of the Sumter and i^ashville. It will, how- ' Appendix to British Case, vol. i, pp. 83-90. '^Case of Great Britain, pp. 67-78. 308 TEEATY OF WASHINGTON. ever, be for the convenience of the arbitrators that they should be fur- nished with a summary account of the hospitalities accorded in British ports during the course of the war to the armed vessels of both bellig- erents. This will be done in a subsequent section. With respect to the case of the Florida, Her Majesty's government submit with confidence to the arbitrators, not only that negligence can- not justly be imputed to Great Britain, but that (even if this were other-, wise) Great Britain could not be held liable for losses sustained by the United States in consequence of the operations of that vessel after she had entered the port of Mobile, had there completed her equipments and enlisted for the first time a sufficient crew, and had afterwar.c} sailed from that port to cruise against the shipping of the United States. [80] *THE ALABAMA. The facts relative to the building, departure, and subsequent arming of the Alabama have been set forth in the British Case with Ti>eAi»bam«. ^ fulluess of dctail whlch renders any additional statements unnecessary ; and Her Majesty's government will here refer to them so far only as may be required for the purpose of correcting erroneous assertions or mistaken inferences in the Case of the United States. In respect to this ship, Her Majesty's Government does not dispute that, at the time when she sailed from England in July, 1862, she was, as regards the general character of her construction, specially adapted for warlike use, nor that the adaptation had been effected within British jurisdiction. The question for the arbitrators is, whether the British government had, according to the fair and just sense of those words, reasonable grounds to believe that she was intended to carry on war against the United States, and, having it, failed to use such diligence as any international obligation required to prevent her departure from Great' Britain, or to prevent her equipment within its jurisdiction. In respect of this ship also, as in respect of the Florida, it is Insisted bj^ the United States that the material facts proving her true character and the employment for which she was intended were notorious, and therefore either were or Ought to have been known to Her Majesty's government, and that no proof ought to have been required from Mr. Adams. It is insisted, further, that not only proof was required, but " strict technical proof," such as would support a criminal prosecution under the foreign-enlistment act. The arbitrators are also told that, ia this case and throughout the war, the British government and its officers "would originate nothing themselves for the maintenance and perform- ance of their international duties," and " would listen to no represen,ta- tions from the officials of the United States which did not furnish tech- nical evidence" sufficient for the purpose mentioned above. These assertions are made use of to explain the fact that, although " before the vessel was launched she became an object of suspicion with the consul of the United States at that port, and she was the subject of constant correspondence on his part with his government and with Mr. Adams," no representation was made respecting her either to the British government or to its officers at Liverpool until the 23d June, 1862. Neither the fact which has to be explained, nor the explanation offered for it, appears to be supported by the evidence. Among the circumstances alleged as proofs of an intention that the vessel should be employed in. the confederate service are the contract between Bullock and the ship-builder, supposed to have been signed in COUNTER CASE OF GREAT BRITAIN, 309 October, 1861, and the asserted facts that Ballock " went almost daily " ou board of her, and " seemed to be recognized in authority," and that her officers were in England awaiting her completion, and were paid their salaries monthly at the office of Fraser, Trenholm & Co., in Liver- pool. For evidence that the Alabama was the subject of constant correspond- ence between the United States consul at Liverpool and his Govern- ment and its minister in London, the arbitrators are referred to the Appendix to the Oase of the United States, vol. iii, passim J^'^ They will discover that, before the date of Mr. Adams's first representation to Earl Eussell, (23d June, 1862,) she is only thrice mentioned by Mr. Dudley in dispatches to Mr. Seward — namely, on the 4th of April, 16th May, and 18th June, 1862. On the 27th June he says that he has mentioned her " in two or three notes to the Department."^ They will not (Her Majesty's government believes) find any letters addressed to Mr. Adams prior to that on which he founded his representation to Earl Eussell, thougli there probably was such a letter, since she is there said to have been mentioned in "a previous dispatch."' The constant correspondence, therefore, which is mentioned in the case did not commence until after the vessel had made her first trial-trip, and was nearly ready to go to sea, and a very few weeks before she sailed, though Mr. Dudley's atten- tion had been directed to her in November, 1861. The fact that Bullock " goes almost constantly on board the gun-boat, and seems to be recog- nized as in authority," first appears in a letter dated 9th July, 1862, ad- dressed to the collector of customs at Liverpool ; and the collector is, in the same letter, told that Bullock " is in Liverpool," and what is sup- posed to be his business there.* The facts that the contract for the ship was made with Bullock, and that confederate officers who were intended to serve on board of her were in Liverpool and receiving pay before she sailed, first appear in a deposition of one Tonge, sworn and communi- cated to Earl Eussell, in April, 1863.^ It has not been shown by the United States that, prior to the time when Mr. Adams *laid a representation before Earl Eussell, any [81] cii'cumstances proving or tending to prove that the ship was intended for the Confederate States were notorious or generally known at Liverpool, or were or ought to have been known to the British government or any of its officers. Indeed, beyond a report that one of the workmen in Laird's yard had said so, no fact of this kind is found in any of Mr. Dudley's previous letters. Such a statement by a mere work- man would not be evidence in any British court, nor is it consistent with probability that ordinary workmen in the yard would have any means of knowing or proving the real destination of the ship. That the vessel was designed for a ship of war was doubtless not dif- ficult to discover, but there was nothing in this to attract special ob- servation. The building of vessels of war for the British government and for foreign governments or their agents had for many years formed a large part of the regular business of the great ship-building firm in ■whose yard she was constructed. It has been publicly stated by Messrs. Laird, and Her Majesty's government are now in a condition to prove it to be the fact, that shortly before the contract with Bullock was said to have been made, they were asked to send in plans and estimates for 1 Case of the United States, p. 366. 2 Appendix to ditto, vol. iii, pp. 1-3 ; vol. vi, p. 377. = Ibid., vol. iii, p. 5 ; vol. vi, p. 376. ■" Ibid., vol. iii, p. 18 ; vol. vi, p. 384. •'' Ibid., vol. iii, p. 145 ; vol. vi, p. 435. 310 TEEA.TY OF WASHINGTON. gun-boats aud a floating battery to the Navy Deportment of the United States by a person who represented himself, and was believed by them, to be authorized by the head of that Department; and being (as they were) commercial men, having only commercial objects in view, they were perfectly ready to have supplied these articles to the United States, if it had been proposed to them to do so on terms which they considered sufllciently profitable-^ The assertion that a particular fact is " notorious" is one the truth of which there is no possibility of testing. It commonly means no more than that the fact is generally or by many persons believed to be true,' which does not prove the truth of it (since a general belief may be, and often is, mistaken) and does not always make it even probable that proof can be obtained. If a general belief prevailed in Liverpool, while the vessel afterward known as the Alabama was in the builder's yard, that she was intended for the Confederate States, (and there is no proof whatever that any such general belief did, in fact, exist,) this would not have been a reasonable ground for calling on the government to seize or interfere with a ship which, for aught that was known to the contrary, was the property of private individuals, guilty of no violation of the law. The phrase " technical e%'idence" is calculated to mislead. If it means such evidence as might be expected to satisfy an Impartial tribunal that a violation of the law had been committed, it is true that the goyerii- ment held itself entitled, before seizing the Alabama or any other vessel, to have such evidence in its possession, or to have reasonable grounds for believing that it would be forthcoming before the trial of the case should begin. Open investigation before a court is the means appointed by law for sifting all accusations and distinguishing ascer- tainable facts from mere rumor ; it is an ordeal that a British govern- ment which, in the exercise of the powers intrusted to it, seizes or in- terferes with the person or property of any one within its jurisdiction, must always be prepared to encounter, and it is clear that the sufficiency of evidence in an English forum can only be tried by principles recog- nized in England, as in an Italian, Swiss, Brazilian, or American forum, it must of necessity be determined by principles recognized in those countries respectively. But the assertions that the British government, throughout the war, " would originate nothing themselves for the maintenance and performance of their international duties, and that they would listen to no representations from the officials of the Unitefl States which did not furnish technical evidence for a criminal prosecii- tion," are not only unfounded; they are opposed to facts stated in the Case and evidence of Great Britain and even in the Case and evidence of the United States. The arbitrators have already seen, from the statements laid before them, that every reasonable suspicion, whether communicated through the minister of the United States or jierived from other sources, Avas immediately made the subject of inquiry; that this was in some instances done where no representation had been re- ceived from Mr. Adams ; and that on every representation of his, thougK unaccompanied by evidence, it was done as a matter of course. It is true, nevertheless, that in cases of this nature neutral govern- ments ordinarily expect to receive information from the ministers or consuls of belligerent powers resident within their territories. These officials have the keenest incitements to vigilance in their national interest and official duty, and are more likely to be the first recipients of intelligence than the government or its officers. ' Appendix to British Case, vol. v, pp. 204-219. COUNTER CASE OF GEEAT BEITAIN. 311 L. This has been the general practice of neutral governments, and {82} the arbitrators have *already seen that It has been followed by the United States. The Government of the United States has expected information to be thus furnished to it, and has expected also the in- foMation to be supported by proofs; and where the proof offered was notisatisfactory, foreign ministers and consuls have been told that they were at liberty to institute proceedings themselves.^ Let us now briefly recall the facts, of which the arbitrators are already ia>jpossession, and which show what the conduct of the British Govern- ment and its officers in relation to the Alabama really was. , On the 24th June, 1862, Earl Eussell received the first representation made to him respecting the vessel afterward called the Alabama, then known only by her number in the building-yard, (290.) In the case of the United States, the arbitrators are told that Mr. Adams had at this ■ 'The answer of Mr. Fisli to the Spanish envoy, in December, 1870, has been already referred to above, (p. 46.) " The undersigned takes the liberty to call the attention of Mr. Lopez Roberts to the fact that a district attorney of the United States is an officer whose duties are regu- lated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal process, founded not upon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a consul, but upon proof submitted according to the forms required by law." There are several examples of this in the correspondence of the Government of the United States with Spain and Portugal. (Appendix, vol. iii, p. 95.) The following letters, exchanged between the Spanish consul at New York and the United States district attorney in 1817, afford a convenient instance. (Ibid., p. 119.) Mr. Stoughton to Mr. Fislc. , - "Consulate of Spain, :_:.' ■ "New York, September 16, 1817'. ^';Sir: Some days ago there arrived in the port of New York an armed brig, proceeding froin i^'orfolk, which I have been very credibly informed is a vessel pretending to have accimmission from Venezuela, but whose object iu coming into this port was to pro- ourefau additional supply of men wherewith to commit hostilities against the subjects and.jpossessions of the King of Spain. A few days ago I presented to the collector of the port of Nevr York an affidavit of a man named John Reilley, stating that he had heeri requested to enlist on board of a vessel, which was represented to him to be the privateer schooner Lively, bound to Amelia Island to join General McGregor, to invade the territories of his Catholic Majesty. "I am now informed that the brig above mentioned is the vessel alluded to, Reilley havftig either been mistaken in the name or designedly deceived by the agents of the privateer. I now inclose the affidavit of John Finegan, by which you will perceive that the officers of the above brig (whose name is the American Libre, commanded by Captain Barnard) are enlisting, and have enlisted, men in this port to proceed against the Spanish possessions. I have caused application to be made to the collector, who doubts the extent of his authority in interfering with this vessel. Now, as there must he provisions iu the laws and treaties of the United States vesting an authority ia some of its officers to prevent the equipment of vessels and the enlistment of men in the United States, to proceed against a foreign nation at peace with the United States, I make this application to you, most urgently requesting you to take whatever measures maybe necessary immediately, in order to prevent the departure of the above vessel, at teast until she shall give bonds that she will not commit hostilities against Spanish subjects. The vessel, it is said, will sail to-morrow morning. "Indeed, if an inquiry were instituted, I am induced to believe the above brig will ^36 found to be a pirate. "I have, &c., (Signed) "THOMAS STOUGHTON." Affidavit of John Finegan. "Skptbmbee 16, 1817. -;;^,,." State of New York, ss: "^phn Finegan, at present in the city of New York, being duly sworn, saith that he was requested by a man, who is represented to be the commissary of the vessel next mentidned, to go out in the Patriot, brig, now lying at the quarantine ground; that the destination of the said vessel is to fight against the Spaniards; that the deponent was ■told that on his arrival in Spanish possessions he was to join the land service of the 312 TREATY OP WASHINGTON. time good reason "to tMnk that it woald be necessary to obtain strictly technical proof of a violation of the municipal law of England before he conld hope to obtain the detention" of the ship, andthat '• he thought he had such proof." Mr. Adams did not, however, in his letter furnish or offer any proof at all, and the inclosed letter from Mr. Dudley con- tained nothing showing or tending to show the purpose for which [83] the *vessel was intended, beyond some hearsay statements, re- ported to come from persons who could not be compelled to give evidence, and an expression of his own opinion that "there was not the least room for doubt about it." On the 25th June Her Majesty's government ordered inquiry to be made on the spot. At the same time the two letters were laid before the law-ofiBcers of the Crown. The latter reported — That if the representation made to Her Majesty's government by Mr. Adania is in accordance with the facts, the building and ectuipment of the steamer in question is a patriots; that deponent knows of five persons who have been engaged in like manner, who are about to proceed on board the said brig ; that deponent was told that as soon as he gets on board he will receive his advance ; that ofiSoers are at present employed in the city of New York in looking out for men, and endeavoring to enlist them to pro- ceed in the said vessel. his (Signed) " JOHN + FINEGAN. mark. " Sworn this 16th day of September, 1817, before me. " SAMUEL B. ROMAINE." Mr. Stoiighton to Mi: Fisk. " Consulate of Spaest, " NeiD YorTc, September 17, 1817. " Sir: I inclose the deposition of John Eeilley, relating to the privateer brig, about which I yesterday had the honor to address you. You will perceive by the affidavit that officers belonging to that brig are openly employed in this city in recruitingand enlisting men to join with General McGregor, and invade the possessions of the Jiing of Spain. " I need not remind you that, by the existing laws of the United States, these enlist- ments are unlawful, and that not only the vessel on board of which they are to embark is liable to seizure and forfeiture, but that the captain and the officers thereof, who are engaged in this business, are liable to a heavy fine and imprisonment. As these are flagrant violations of the laws of the United States, and calculated to produce serious injury to the possessions of His Majesty, and to the property of his subjects, 1 flatter myself that you will take, without delay, such steps as may be necessary to put a stop to these proceedings. (Signed) '' "THOMAS STOUGHTON." Deposition of John Beilley. / " September 9, 1817. ' Statb 01" Hew Youk, ss, City of Nbw York, ss : "John Eeilley, at present in the city of New York, mariner, being duly sworn, s^ith,. that some days ago deponent was requested to embark on board of a vessel which was said to be lying at the Narrows, in the Bay of New York, for the purpose of going to join General McGregor, and to fight against the Spaniards ; that after he arrived at Amelia Island he might either join the land service or the naval service ; that depo- nent wonld be paid as soon as he got on board ; that several persons were engaged in looking out for recruits to proceed upon the same service, and many men were spoken to for the purpose. Deponent was then informed that the vessel was the privateer schooner Lively, but has since learned that it was a mistake, and that the vessel in question is the patriot brig Americano Libre, Captain Barnard, which is lying at the quarantine ground, and is armed with several large guns and many men ; that several persons who are officers, captains, lieutenants, and so forth, are at present employed in recruiting men to join that service, and proceed in the said brig to Amelia ; that many hands have already been bespoken, and are now waiting for money which has been promised to them ; that the oifers made to them are to give them $8 a month and cloth- ing, together with $10 or $12 in advance. Deponent supposes, that the officers above mentioned were in treaty with about twenty persons, who were to go on board as soon as their advance was paid to them, and which the said officers told them would be COUNTER CASE OF GREAT BRITAIN. 313> manifest violation of the foreign-enlistment act, and steps ougM to be taken to put that apt in force and to prevent the vessel from going to sea. The report of the United States consul at Liverpool, inclosed by Mr. Adams, besides suggesting other grounds of reasonable suspicion, contains a direct assertion that the foreman of Messrs. Laird, the builders, has stated that this vessel is intended as a pri- vateer for the service of the government of the Southern States ; and, if the character of the vessel and of her ectuipment be such as the same report describes them to Itie, it seems evident that she must be intended for some -warlike purpose. Under these circumstances, we think that proper steps ought to be taken, under the direction of Her Majesty's government, by the authorities of the customs at [84] Liverpool, to ascertain the truth, and *that, if sufficient evidence can be obtained to justify proceedings under the foreign-enlistment act, such proceedings should he taken as early as, possible. In the mean time Mr. Adams ought, we think, to be informed that Her Majesty's government are proceeding to investigate the o^se ; but that the course which they may eventually take must necessarily depend upon the nature and sufficiency of any evidence of a breach of the law which they may be en- abled to obtain ; and that it will be desirable that any evidence in the possession of the. United States consul at Liverpool should be at once communicated to the officers of Her Majesty's customs at that port.' On tlie 4tli July the results of the iuquiry instituted at Liverpool by the customs department Tvere communicated to Mr. Adams, with a sug- diiring the course of the day ; among the officers there is one who is called a general. That the above men were told, in deponent's presence, by the officers who were enlist- ing them, that they were principally wanted to join the land service against the royal- ists. And further the deponent saith not. (Signed) " JOHN REILLEY: " Sworn this 10th day of September, before me. " FRANCIS R. TILLON, "Notary Puilic." Mr. Fislc to Mr. Stoughton. " New York, Se^temier 17, 1817. " Sir : -I have duly received your notes of yesterday evening and of thi^ day, and have referred to the statutes providing for the punishment of the offenses stated. It is not a case, from the evidence mentioned, that would justify the collector in detaiin- ing tliteTessel ; the aggression is to be punished in the ordinary mode of prosecuting those 'who are guilty of misdemeanors. Oath is to be made of the facts by the com- plainant, who enters into a recognizance to appear and prosecute the offenders before iiny^rocess can issue. This oath being made, and recognizance taken, the judge of the circuit court will issue a warrant to apprehend the accused, and bring them before him, to be further dealt with according to law. When apprehended, it is the province of the attorney of the United States to conduct the prosecution to judgment. I have no aiithority to administer an oath, or to issue a warrant, nor have I the power to issue 'any process to arrest and detain the vessel in question, unless by the direction of an executive officer of the United States. By the reference you have famished, the parties complained of are to be prosecuted either under the 4th section of the act of Congress passed on the 3d of March, 1817, or under the 2d section of the act passed 5th June,. 1794. By adverting to these statutes, it will be seen that the vessel is not liable to seizure for the act of any person enlisting himself to go on board, or for hiring or retain- ing another person to enlist ; the punishment is personal to the offenders ; and those who disclose the fact, on oath, within thirty days after enlisting, are protected from prose- cntion. The offenders are to be arrested and prosecuted in the manner I have stated. 1 heg you to be assured, sir, that it is not from a disposition either to shrink from the ■performance of my duty, or to decline interfering to defeat any illegal enterprise against the subjects or possessions of a power with whom the United States are at peace, that I have stated to you the embarrassments I must encounter in attempting a complianofr with your request upon any information with which I am furnished. If it is in your power to procure the names of the parties, and the evidence upon which a prose- cution for a misdemeanor can be founded, I will readily co-operate with the proper authorities in having every offender arrested and brought to justice. It is impracticable for me, or any other officer of the United States, to take any legal measures against aggressors, upon the indefinite statement of certain persons being concerned in an ille- gal transaction. Since the receipt of your notes, I have had an interview with the col- lector, and we are unable to discover any other legal course of proceeding in this case than that adopted in the ordinary cases of misdemeanors. Ui^Idj *"'" '■■ JONATHAN FISK." The Spanish consul rejoined by a warm remonstrance. The expedition appears t.o have been permitted to sail unmolested. ' British Case, p. 83 ; Appendix, vol. 1, p. 181. 4314 TREATY OF WASHINGTON. gestion that he should instruct " the United States consul at Liverpool to submit to the collector of customs at that port such evidence as he may possess tending to show that his suspicions as to the destination of the vessel in question are well founded." ^ If Mr. Adams, or the consul from whom he derived his information, was at this time possessed of evidence as to the intended employment and real character of the ship, the time had now arrived when it ought to have been produced without delay. Five days afterward, on the 9th July, the consul wrote a letter, received on the 10th, which purported to convey " all the information and cir- cumstances which had come to his knowledge " to the collector of cus- toms.^ The contents of this letter, when examined, will be found to consist partly of one or two alleged facts, (not proved,) tending to con- nect Bullock with the vessel ; partly of statements or admissions said to have been made by various persons to third parties, and to have been by them reported to the consul. The persons to whom these statements or admissions were ascribed were two officers of the Sumter, who had passed through Liverpool two months before ; a foreman then or previ- ously employed in the ship-builders' yard, and not designated by name f and " a youth named Robinson," who was understood to be at " a school in London." Mr. Dudley had not himself seen any of these persons; hehad only heard from others (whose names he said he could not disclose) that they had made the statements or admissions attributed to them. His information, therefore, consisted in reality of reports, received from anonymous persons, of statements alleged to have been made by others who could not be found, or who, if found, could not have been compelled to give evidence, since the evidence would have tended to criminate themselves. Of Bullock nothing was at this time known to Her Majesty's government, and the consul, although he asserted that Bullock was a confederate officer sent over to England for a particular purpose^ fur- nished no evidence of this, nor offered to furnish any. .: Mr. Dudley was therefore informed by the collector that the officers of the revenue would not be justified in acting on the statements con- tained in his letter, unless they could be substantiated by evidence. ' On the 21st July, eleven days after the collector's reply, and a month after the time when (as is alleged) Mr. Adams thought he had in. his possession "strictly technical proof" of a violation of the law, some evidence was produced for the first time, and laid before the collector by the consul. This evidence consisted of six depositions, of which only one, purporting to be sworn by a man named Passmore, was ma- terial to the question, and legally admissible.^ It has already been ob- served that, to rely on evidence of this kind, proceeding from a single witness, without corroboration, and without inquiry into his character and general credibility, would, according to judicial experience in Eng- land, (and, it may be added, in the United States likewise, and proba- bly in other countries,) have been very unsafe in a case of this nature.* The consul was, however, informed that it was competent for him, if he should think fit, to institute at his own risk a prosecution against the persons supposed to be concerned in the alleged violation of the law.' ' British Case, page 84 ; Appendix, vol. i, p. 184. '' Appendix to Case of the United States, vol. iii, p. 17 ; vol. vi, p. 383. ■' Ibid., vol. iii, p. 21 ; vol. vi, p. 391. " British Case, p. 91. ^ Appendix to Case of the United States, vol. iii, p. 21 ; vol. vi, p. 396. Reference has already been made above (p. 83) to the answers given in a like sense by Mr. Fish, to the Spanish minister in December, 1870, and by Mr. Fisk to the Spanish consul in 1817. COUNTEK CASE OF GREAT BRITAIN. 315 {85] *In the Case of the United States the arbitrators are told that the depositions submitted on the 21st were "cooclusiv'ely passed upon" by Her Majesty's government.i This is a misapprehension, if it is meant that they were accepted by the government as conclusive. What the government accepted as sufficient was not the incomplete, and scanty evidence of the 21st, but the same evidence, strengthened and completed by the additional depositions of the 23d and 25th. On the 23d July two further depositions were furnished by the board of customs.^ An additional deposition was received on the 25th Jttly.^ On Tuesday, the 29th July, the law officers reported their opinion that the evidence was sufficient, and that the vessel ought to be seized.* This opinion was unfortunately given too late, the vessel having put to sea on the same morning, under the circumstances stated in the British Oase.^ We see, then, that although, aocoi'ding to the statements made in the Case of the United States, this vessel had been an object of suspicion and scrutiny to the consul ever since November, 1861, although he had for months believed that she was intended for the confederate government; although she had been, as is alleged, the subject of constant correspond- ence with his official superior and with Mr. Adams ; although she had, within his knowledge, been gradually advancing to completion, had made her trial-trip, and was beginning to get ready for sea; and although Mr. Adams knew that evidence such as could be produced in a court of law, not only of her adaptation for war, but of her being in- tended to be employed in hostilities against the United States, was required to justify a seizure; notwithstanding all this, no evidence whatever proving or tending to prove such an intention was produced to the British government or its subordinate officials till the 21st of July, eight days before the vessel sailed, and at a time when it was reported that she might leave at any hour ; and what was then fur- nished required to be strengthened by additional evidence, part of which was delivered on the sixth and the remainder on the fourth day before her departure. It is clear beyond controversy that this long and hazardous delay on the part of the officials of the United States in this country must have been due to one of two causes — either to a want of due diligence in procuring the evidence necessary to verify the suspicions which they entertained, or to their inability to procure it. The second of these explanations, which is confirmed by Mr. Dudley's complaints of; the difficulty experienced in inducing any witness to come forward, is probably the correct one. But, in either case, what becomes of the charge of gross and culpable negligence against the British govern- ment? If Mr. Dudley, whose business it was to find out the truth of a suspected enterprise so dangerous to his country, could get no evidence of it until too late, why is it imputed as gross negligence to the officers of the government that they, without his means of information, were not , ' Page 371. ' -Appendix to BritisB Case, vol. i, p. 194. llljid., p. 198. ajlbul., p. 200, 'Some stress is laid, in the Case of the United States, (pp. 368, 374,) on a statement in a report by the commissioner of customs to the treasury, that the revenue officers at Liverpool should "watch" the ship. This is construed into a promise to Mr. Adams himself that she should be watched to prevent her departure; and he is said to have relied upon it, and to have been indignant when the authorities "failed to redeem their voluntary promise." Mr. Adams, howevei', knew well that, although the ship might he "patched" by the officers to ascertain whether she took arms on board, (the con- test shows that this was meant,) nothing but an actual seizure could legally prevent her from sailing. 316 TREATY OF WASHINGTON. more successful 1 If he could, why is the penalty of his negligence to be paid by th'e British nation ? Up to this point, then, it is clear that there is no reasonable ground for the charges brought by the United States against Great Britain. If those charges are to be supported in any way, they must find their only support in what was done, or omitted to be done, afterward. That the question whether the evidence was credible and sufficient to sustain a seizure, was one on which the British government had a right, before acting, to consult its official legal advisers, cannot be denied. It was clearly and eminently such a question. Xor does it admit of denial that the evidence was actually referred, as soon as it was received from time to time, by the government to its advisers, for their opinion ; nor that, if any reasonable doubt existed, the government and its advisers were justified in taking reasonable time for consideration. The charge of gross negligence, then, resolves itself, when tested by examination, into this and no more : that the evidence not having been delivered till within a few days of the sailitg of the ship, and then in successive installments sent almost from day to day, a little more time than may now perhaps be thought to have been absolutely necessary was consumed in obtaining the advice and forming the conclusion on which the government ultimately acted. A circumstance has been already mentioned, of which Mr. Adams was informed at the time, as having occasioned some little delay.' [86] Nor ought it to be forgotten that the sole *facts which were alleged, and as to which evidence was offered, and for prevent- ing which Her Majesty's government was solicited to interfere, were the fitting out for sea in the neutral port of a vessel specially adapted by her construction for war, and built as a commercial transaction to the order of an agent of a belligerent, and her apprehended departure, unarmed, for an unknown destination, which might be a port of the Confederate States. Of arrangements for arming her nothing was known to thfe officials of the United States, and nothing was brought to the knowl- edge of Her Majesty's government; and they are now informed by her builders, Messrs. Laird, (who would, if necessary, give evidence to that effect before the arbitrators,) that they also were entirely ignorant of those arrangements, and that they believed the vessel to be intended to run the blockade. In the opinion of the government and its advisers, the adaptation of this vessel for war, with a view to her employment in the service of the Confederate States, would, if proved, have been a breach of the foreign-enlistment act ; but this was not established by authority; it was a point on which high legal opinions were known to differ; and it was the more necessary that the evidence should be clear. When the matter is reduced to this point, we see that it is one upon which an adverse judgment cannot reasonably be founded by a court of international arbitration. Whether the evidence fnrnished was sufii- cient ; at what time it became sufficient, (taking into account the prin- ciples of English law, by which the government and its advisers were bound;) and whether the conclusion at which the government arrived was or was not deferred a little too long by a reasonable doubt or an accidental delay, are questions as to which such a court might, per- haps, find it not easy to form a clear and decisive opinion. The British government conceives, however, that it is not upon grounds such as these that a grave charge of neglect of international duty ought, when raised, to be decided. The standard of international obligation which ' The illness of the Queen's advocate ; British Case, p. 118. COUNTEE CASE OF GREAT BEITAIN. 317 a decision adverse to Great Britain on such grounds would assume, has never heretofore been applied to or acknowledged by any government; and it needs no argument to show that the establishment" of it would be a matter of serious consequence, not to maritime States alone, but to the general peace and tranquillity of nations. The same observations apply with still greater force to the complaints made by the United States of some petty mistake which possibly may have been made, or some small defect of promptitude in decision or action which may possibly have been exhibited by subordinate offtcers at Liverpool after the departure of the vessel. At no time after she sailed was there more than a bare possibility that by the utmost promptitude, aided by good fortune, she might have been seized while in British waters. It appears incredible that the United States should mean seriously to contend that, because a subordinate revenue ofiBcer hesitates when in doubt to assume a responsibility, or writes to his superior by post instead of communicating by telegraph, a grave inter- national injury has been perpetrated and liabilities incurred such as they now seek to establish. It is evident that, on such complaints, were they fit to be entertained, no just conclusion could be formed with- out a minute knowledge of the attendant circumstances, such as is now impossible to the arbitrators, and unattainable even by Her Majesty's government. How little support is to be found in the history of the United States themselves for the application of so rigorous a standard has been sufficiently shown in an earlier portion of this (Jounter Case. Indeed, we need not go beyond the facts immediately before us. Is the Government of the United States willing to be charged with gross negli- gence on the ground that the captain of the Tuscarora was lying idle at Southampton or sailing in St. George's Channel when he ought to have been off the Mersey 1 Her Majesty's government forbear, therefore, to detain the arbi- trators by an examination of the minor inaccuracies which occur in this part of the Case, and will refer to only one or two of them. It is said that the collector knew on the 30th of an "admitted recruitment" of men, and that the commissioners of customs knew of it on the following day and "took no notice" of it.^ There was, however, no admitted recruitment, in the sense of an unlawful enlistment of men, in the port of Liverpool. There was nothing to show that the men were not hired for the mere purpose of navigating an unarmed vessel ; and it has since proved that they really were so. No enlistment took place until after the vessel reached the Azores^ when some agreed to take service and some refused.^ If, therefore, they had been taken before a magistrate at Liverpool, they must have been released. It is said that the revenue officers at Liverpool permitted the ship to remain unmolested in British waters during nearly two days, when they were or should [87] have been cognizant of *it. Whither she had gone was, in fact, quite unknown until the master of a tug-boat reported that she had been cruising off' Point Lynas, about fifty miles from Liverpool. It is said that at the time when this report was received, the collector had received orders to stop the vessel. If this was so, he had not the means of immediately seizing a ship fifty miles away, off the coast of Wales. It is said that her departure from the Mersey was " hastened by the illicit receipt of intelligence of the decision of the government to stop her." It is dif&cult to understand how this could have been the case, since the decision of the government to stop her was not formed till ' Case of the United States, p. 377. ^See the afificlavit of Eedden, Appendix to Case of the United States, vol. vi, p! 422. 318 TEE AT Y OP WASHINGTON. after the report of the law-officers, which was only received on the 29th ; and if it had been so, the British government could never be held responsible for the treachery of some unknown subordinate, who may have become informed of their decision, or may have anticipated that it would be made. Her Majesty's government maintains that claims in respect of the Alabama must be supported, if at all, solely and entirely by a clearly ascertained failure of duty, for which the government itself can justly be held responsible, and that the failure of duty must be such as can with propriety be made the subject of a serious intergational complaint. To found a complaint or claim, wholly or in part, on the asserted fact- that a government would not act against persons or property within its dominions without "strict technical evidence," either means nothing or means that the rules which civilized states have found necessary in the domestic administration of justice, for the protection of private rights and of persons wrongfully accused, are to be set aside in cases of inter- national controversy. International law would then become a pretext not only for interfering with the internal arrangements of different countries in matter of legal procedure, but for drawing back society to the use of those less safe means for the enforcement of rights which, in the course of its progress, it has found reason to exchange for other and more equitable means. To found a charge of neglect on the lapse of so short an interval as occurred in the case of the Alabama between the production of evidedce and the decision that it was sufficient to act upon, is to lay down' an impracticable standard of huinan conduct. It is a demand that the conduct of a government with its various departments, with modes of action which are of necessity methodical, and more or less complex, shall proceed with a mechanical precision which is not applicable to the practical business of life. Where nice considerations of right, as be- tween parties having opposite interests, have to be weighed, the appli- cation of such a principle is palpably unreasonable ; yet on what other principle can it be maintained that the time taken between Friday, the 25th, and Tuesday, the 29th July, for the joint action of the foreign of&ce and the law-officers was so plainly excessive that it may justly be made a ground for formal condemnation? Does it not rather carry with it presumptive evidence of good faith? As to the subsequent arming of this vessel in the waters of the Azores, Her Majesty's goverment is content to refer the arbitrators to the statements contained in the British Case. They are told, indeed, in the Case of the United States, that she was "armed within British jurisdiction," which is explained as meaning that the armament in- tended for her was sent from the same port as the ship herself. It is added that '.' the British authorities had such am^jle notice that they must be assumed to have known all the facts." If by this it be meant that the government or its officers had any notice of the dispatch of the Alabama's armament, the fact is otherwise; if the meaning be that, because they knew of the building of the ship, they must be assumed to have known the arrangements for arming her, (of which they, as well as the minister and consul of the United States, were, in fact, totally ignorant,) this, to say the least, would be a presumption of a very strange and unusual kind. As to this point, it is enough to repeat here what was said in the Case of Great Britain. The Alabama sailed from England wholly un- armed, and with a crew hired to work the ship, and not enlisted for the confederate service. She received her armament at a distance of more COUNTER CASE OF GREAT BRITAIN. 31&- than 1,000 miles from England, and was armed for war, not within the Queen's dominions, but either in Portuguese waters or on the high seas. ^Theguns and ammunition, which were put on board of her off Terceira, had J)een procured and exported from England in an ordinary merchant- steamer, which loaded them as cargo, and sailed with a regular clear- ance for Nassau. The clearance and departure of this steamer pre- sen4;ed, so far as Her Majesty's government is aware, no circumstance distinguishing her from ordinary blockade-runners. No information was ever given or representation made to the government as to this ship or her cargo before she left British waters; nor does it appear that thQ?'errand on which she was employed was known to or suspected by the officials of the United' States. But, even had a suspicion existed that her cargo was exported with the intention that it should be used, eithjcr in the Confederate States or elsewhere, in arming a vessel which ■ had been unlawfully fitted in England for warlike employment, [88] this would not *have made it the duty of the ofiftcers of customs to detain her or have empowered them to do so. Such a trans- action *is not a breach of English law, nor is it one which the British government was under any obligation to prevent. Whether the cargo was sent from the same port as the ship or from a different port, and by the same or different persons, is manifestly immaterial for this purpose. The distinction is plainly not such as to create in the one .case a duty w)iich would not arise in the other. The Alabama was commissioned by the government of the Confed- erate States and officered by American citizens. Of the crew a con- siderable number were British subjects, who were induced by persua- sion and promises of reward to take service in her when she was off Terceira. Others were American citizens, and the proportion which these bore to the rest increased during her cruise. Her i^Majesty's government refrains, in the case of this vessel, as , ia that, of the Florida, from pursuing in this place the complaints made resgecting the subsequent admission of her into some of the colonial ports of G-reat Britain. It is said,, indeed, in the Case of the United States, that Earl Russell promised Mr. Adams to send orders to Jamaica (which she visited in January, 1862) to detain her for a violation of British sovereignty, and that this promise was not kept; and that " Great Britain did not, as Earl Eussell had promised, send out orders for her detention," is one of the grounds on which the United States ask an award against this country. Earl Eussell gave no such promise. In a^conversation with Mr. Adams, immediately after she left Liverpool, and at a time when her immediate destination was unknown, he is stated to have told the latter that he "should send directions to have her stopped, if she went, as was probable, to Nassau." Orders to this effect were, in fact, sent. But the contingency contemplated as proba- hlef^did not occur ; the ship, as has been seen, did not go to Nassau, but taTerceira; and when she first appeared in British waters she was a coHsmissioned ship of war, and had been received as such in a French port, as she afterward was (notwithstanding the remonstrances of the IJnited States) in ports of Brazil. It was not the duty of the British government or of any other neutral power to cause her to be seized and detained when she entered its ports in that character. She was ■received there under precisely the same conditions as vessels of war of the JJnited States, and the imputation of partiality which is cast, in the Gate of the United States, on the governor of the Cape Colony, is en- tirely devoid of foundation. Nor is it necessary to enter into the com- plaints laid before Her Majesty's government by Mr, Adams respecting .320 TREATY OF WASHINGTON. acts done by the commander of the Alabama on the high seas, Mr. Adams does not seem to have remembered that a sentence of condemna- tion is not necessary where there is no neutral interest in ship or cargo; nor that the practice of using false colors to approach an enemy is regarded in all navies as allowable, provided the true flag be hoisted before a shot is fired. Her Majesty's government is not, however, con- cerned to defend the conduct of the captain of the Alabama, when out of its jurisdiction, in these or any other particulars. Whatever it jnay have been. Great Britain is not responsible for it; and if it furnished any reason against the admission of his ship into British ports, it would have been equally A^alid against her reception in the ports, of France and Brazil. It will have been observed from the foregoing statement, as weH as from the fuller narrative which Her Majesty's government has pre- viously presented to the arbitrators, that the cases of the Florida and Alabama differ from one another in various more or less important parr, ticulars. But Her Majesty's government agaiu submit that neither in respect of the Alabama nor in respect of the Florida is Grjeat Britain chargeable with any failure of international duty for which reparation is due from her to the United States. m *PART VII THE GEORGIA AND SHENANDOAH. 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 Ge^o^Sa™si;J„L! they respectively departed from its jurisdiction, any reason- ''°"''' able 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, as the arbitrators are aware, was a vessel built at Dum- barton, in Scotland, and sent to sea from the port of Green- ock in April, 1863. She had undergone, when completed, The Georgia. the customary surveys by the proper officer of the port of Glasgow, and is described by him as appearing to be Intended for commercial pur- poses. Her frame- work and platings were of the ordinary sizes for ves- sels of her class. The tide-surveyor at Greenock, in like manner, " 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 ob- servation, 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 pur- pose, 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 api^ears, from depositions furnished on the part of the United States, to have been about fifty. In tiie Case of the United States a de- scription 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 1 Appendix to British Case, vol. i, p. 404. - Appendix to Case of the United States, vol. vi, p. 512. 21 A— II 322 TREATY OF WASHINGTON. is DO reason whatever to believe that when she sailed from Greenock she had a magazine, or that her cabins or interior fittings were of any un- usual strength. She had on board joiners who were fitting up her cab- ins 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.^ The assertion is repeated in this case that the service for which the vessel was constructed was " notorious."^ In proof of this the arbitra- tors are furnished with two anonymous letters published in an English newspaper in February, 1863, one of which contained no reference what- ever 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 in- dividuals 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 confeder- ate government and partly by private individuals at Nassau, is thus ad- duced as proof that it was notorious that the same vessel was intended for a confederate cruiser. " Ber 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 infornjation of an enterprise described as having been so •' notorious," and of such serious consequences to the United States, was furnished to Her Maj- esty's government or to the local authorities by the United States con- sul 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 responsi- ble for the consequences of it to the United States. 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 pur- suit 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 acertain the facts as to the Alar," (the merchant- vessel 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 disi)atched 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 Liver- pool pai)er published on the 9th, which mentioned a report that the ves- 1 British Case, p. 122. 'Case of the United States, pp. 392, 408; Appendix to ditto, vol. vi, p. 503. COUNTER CASE OF GREAT BRITAIN. • 323 sel was intended for the confederate service, and bad sailed " for un- known destinations." If recourse had been had to the navy, " it is probable," the arbitra- tors 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, in- stead 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 violation of the law. As it was, the intelligence of the departure of thei Georgia, and the assertion (a bare assertion unsupported by any proof at all) that she was intended for the confederate service, were first com- municated 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 tor 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 has^e been at once assumed 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 dis- patched 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 llshamt, which is not less than 1.50 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 terntorial waters are not within the dominions of Her Majesty. They are close to the coast of France, and within the do- minions 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 plaili a violation of the sovereignty of [91] France, as that of the Chesapeake in December, 1863, *withiu the waters of Nova Scotia, by a United States cruiser, was a violation of the sovereignty of Great Britain. That an error had been committed in the latter case was acknowleged 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 Rus- sell did not order inquiries only ; he did order action, A s'lip 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 1 Case of the Unite I States, p. 19 i. ''Appendix to ditto, vol. vi, p. li.OJ. 324 . TREATY OF WASHINGTON. violate the foreigu-enlistment act within British waters, only, however,, to find that Mr. Adam'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 (iovernment 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 British- owned 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 confeder- ate 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 there- fore 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 poit for the pur- COUNTER CASE OF GEEAT BRITAIN. 325 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 im- proper 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 per- sons who may have been concerned in fitting out or manning a particu- lar vessel for the naval service of a belligerent, or may themselves i[92i| 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 con- sequences to which such a principle, if pursued, would lead, cannot be unknown, certa,inly, to the Government of the United States. It is .true, indeed, that wten a succession of criminal enterprises, openly un- dertaken 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 ^rave 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 difftcult to obtain a convic- tion for offenses of this class, and that the difficulty may be even en- hanced 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 reason- able 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 lim- its, 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 often 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 gov- ernment was directed to many vessels building or fitting out in British ports, and suspected of being intended for the naval service of the Con- federate States. An account of all these has been laid before the arbi- trators in the British Case.^ It has been seen that, of twelve suspected vessels, four were seized and effectually prevented fi'om 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 offi- cers of government ; that, in some cases, these inquiries were ordered I Pages 33 to 50. 326 TREATY OF WASHINGTON. and made before the receipt of any representation from Mr. Adams; and that in every case, without exception, either the information fur- nished proved to be erroneous, and the supposed indicia of an unlawful intention absent or deceptive, or this intention was defeated or aban- doned by reason of the measures taken and the vigilance exercised by Her Majesty's government. Far, therefore, from favoring a presumption of remissness or negli- gence on the part of this government, the facts clearly establish a directly contrary presumption. THE SHENANDOAH. This vessel, as has-been seen from the statement already placed be- fore the tribunal, had been designed solely for a merchant- T„e si,e.a„do.„. g^pg^^jg^i gjjg ^jjg ^^j^; ^t Glasgow to thc ordfer of a Lon- don firm, with the intention that she should be employed in the China trade. It is a matter of first importance in that trade to secure the ea rliest arrivals of tea ; and the object of the firm in question was ta ha ve a vessel which, by the use of steam power, would be able to bring h me the new teas faster than the quick sailing-vessels employed at that time for the purpose.^ The Sea King, as she w^as^ then called, started on her first voyage to the China Seas toward the end of 1863 j. and, in order to make profit on her passage out, her owners contracted with the government to take troops to New Zealand. From thence she proceeded to China, and returned with a cargo of tea in the ordinary course of trade. Before starting she had been provided with two smooth-bore twelve-pounder guns, such as are usually carried by ships trading in the China seas, to Ibe used as signal-guns, and for other pur- poses common to merchant- vessels.' In September, 1864, after her re- turn to England, she was sold by her owners, Messrs. Eobertsoh, to a Mr. Wright, a merchant of Liverpool, through the agency of regular ship-brokers in that town ; and, on the 8th October following, she again left London on a voyage which, to all appearances, was precisely similar to Her former one, excepting that, on this occasion, instead of taking out troops to New Zealand, her port of first destination was Bom- bay. [93] *It appears, from documents now produced by the United States for the first time, that Mr. Dudley, the United States consul at Liverpool, had noticed this vessel when on a visit to Glasgow, where she was built in October, 1863, and that he had at that time written to his Government, describing her as " a very likely steamer for the con- federates," to whom he heard that she was going to be sold. Mr. Dud- ley's information, as not infrequently happened, proved to be incorrect; and all suspicions were set at rest by the discovery that the Sea King was taking out troops to New Zealand.^ Nor does his statement that she was " well adapted for war purposes" seem to have been more ac- curate. Her appearance, even after her conversion into a confederate cruiser, is stated to have been that of an ordinary merchant- vessel, and her own officers doubted whether it would have been safe to fire a broad- side with the guns which were then placed on board of her.' It is there- ' Britisti Case, pages 143 and 160. ° Appendix to British Case, vol. i, p. 724. »Ibid., p. 725. ■"Appendix to Case of United States, Yol. vi, p. 555. * See report of Captain Payne, Appendix to British Case, vol, i, p. 557, and of the ITnited States consnl at Melbourne, Appendix to Case of the United States, vol. vi, p. 595. CUUJNTEK CASE OF GREAT BRITAIN. 327 fore clear that this vessel also, when she left this country, was not a ship to which the first of the three rules in the sixth article of the treaty would have applied, nor a ship with which Her Majesty's gov- ernment were under any obligation to interfere, according to any rule I or principle of international law. It is not pretended that the attention of the British government was- in any way called to the Sea King, even at the time when the suspicions of the United States consular authorities were thus roused in regard to her. Prom that time up to her second departure from England, in Oc- tober, 1864, the vessel seems to have been entirely lost sight of. Ten days after that second departure Mr. Dudley discovered and reported to the United States legation in London the fact that Mr. Wright, the purchaser of the Sea King, was the father-in-law of Mr. Prioleau, a mem- ber of the firm of Fraser, Trenbolm & Co.' It is now contended, in the Case of the United States, that this circumstance in the family history of the firm should have been known beforehand to the British govern- ment, whose duty it was to exercise a special supervision over any transfer of shipping made to or by this gentleman, and that the fact of his having acquired a vessel built for the China trade, and sent her out to Bombay with what it subsequently appeared was an ordinary cargo for such a voyage,^ should "at once have attracted the attention of the British officials." "The omission to take notice of this fact," it is said, "is a proof of want of the due diligence required by the treaty."' It was a failure of due diligence — nay, even of " the most ordinary dili- gence" — on the part of Her Majesty's government, that it forbore to pry into the family circumstances of Prioleau, acquaint itself with the name of his father-in-law — and, it may be presumed, with his other . connections — and prevent, by some unexplained process, such persons from buying steamers in the London market. What exact " notice " the pflBcials should have taken, or what they should have done to follow up "so palpable a clew," the United States have omitted, or perhaps have not found it easy to state. It is difficult to suppose that it can be seriously argued that such a system of espionage is among the duties which can properly be expected of a neutral government, or that such a government can fairly be charged with negligence in having failed to discover grounds for action, when the parties most directly interested, with equal access to information, had not even seen cause for suspicion. But Her Majesty's government thinks it right to direct the attention of the tribunal to this illustration of the view of international duty on which the claims of the United States are founded, and of the " due dil- igence," the "wakefulness and watchfulness" which, according to that view, are to be exacted from all neutral nations, under the penalty of being exposed to such demands as are now made against Great Britain. The best proof of the apparently innocent nature of the voyage is the circumstances that the persons most likely to notice anything out of the ordinary course, namely, the crew of the vessel herself, were quite un- suspicious of the real intentions of the owner; and that when it became known to them, on their arrival off Madeira, that the vessel was to be turned into a confederate cruiser, forty-two out of forty-seven of them refused every inducement in the shape of money and promises held out to them to serve in her, and insisted on being sent back to England. On the day following the departure of the Sea King from the port of 'Appendix to Case of Uni-fced States, vol. iii, p. 319; vol. vi, p. 560. *See evidence given at the trial of Captain Corbett, Appendix to Case of the United States, vol. iv, p. 632, 'Case of the United States, p. 417. 328 TEEATY OF WASHINGTON. London, another steamer, the Laurel, left Liverpool ostensibly for Mat- amoras via Nassau. The CJnited States consul at Liverpool reported to his Government that she had taken on board cases marked as ma- chinery, but, in reality, as he believed, containing guns and gun- [94] carriages ; *that she had shipped many more seamen than were " necessary for a vessel of her description ; that he heard that some confederate ofiftcers were also to go out in her ; and that he had his sus- picions that she would prove to be a privateer; but he added, " I have no evidence against her.'" He could obtain no evidence ; but this does not iDrevent the introduction into the Case of the United States of the assertion that the British government could, by the exercise of due dil- igence, have detained her — without evidence, it must be presumed, and without any charge of an offense known to the law. Neither Mr. Dud- ley nor the United States legation in London gave any notice on the subject to the British authorities, and the attention of the government was first called to the proceedings of the two vessels by a report re- ceived on the 12th of November from the British consul at Teneriife. The meeting of the Laurel and the Sea King off the Madeira Islands, and the transfer of the latter vessel to the confederate flag under the name of the Shenandoah, after receiving her armament and crew from the Laurel, have already been stated in detail by Her Majesty's govern- ment in the Case presented by it to the tribunal, and need not be here repeated. For the same reason, no further account need be given of the investigations which were made by the British consul at Tenerifie on the arrival of Captain Oorbett and the late crew of the Sea King at that island, on board the Laurel, and which led to his sending the cap- tain to England under arrest for breach of the foreign-enlistment act ; nor of the steps which were thereupon at once taken by the government to bring the offender to justice. Her Majesty's government maintains that all that was in its power and could fairly be expected of it was done to vindicate the neutrality of Great Britain on this occasion. The Shenandoah proceedfed from Madeira, and, after a cruise of about three months, anchored in Hobson's Bay, the port of Melbourne, on the evening of the 25th of January, 1865. She was the first vessel of war belonging to either of the contending parties which had appeared in Australian waters since the commencement of the civil war.^ The cir- cumstancps of her visit and the conduct of her commander. Lieutenant Waddell, during her stay, placed the colonial authorities in a position of no little difficulty and perplexity, in which they seem to have acted with great discretion and vigor, though their conduct has not escaped much invidious comment in the Case of the United States. It may be convenient to the arbitrators that the facts should be here restated in the form of a connected narrative. Lieutenant Waddell, immediately on his arrival, seyt a letter to the governor stating that the machinery of the Shenandoah required re- pairs, and that he was in want of coal, and requesting permission for repairs and supplies to enable him to get to sea as quickly as possible.^ This note was received about half past 8 o'clock in the evening of the 25th of January ; and the messenger was informed that it should re- ceive early attention, and be replied to in the course of the following day. The governor accordingly summoned the executive council on the 26th, and communicated to them the application he had received ; and, upon their advice, a letter was addressed to Lieutenant Waddell, grant- 1 Appendix to Case of the United States, vol. iii, p. 317 ; vol. vi, p. 538. ^Appendix to British Case, vol. i, p. 500. COUNTEE CASE OF GREAT BRITAIN. 329 ing the permission desired, and requesting information as to the nature and extent of the repairs and supplies required, in order that the gov- ernor might be enabled to judge of the time necessary for the Shenan- doah to remain in the port of Melbourne. Extracts of orders Issued by Her Majesty's government for the proper preservation of neutrality were at the same time forwarded for Lieutenant Waddell's guidance.^ Upon receiving this communication, Lieutenant Waddell applied to Messrs. Lan glands, iron-founders, of Melbourne, to examine the vessel and undertake the repairs. He seems further, from a report received by the governor from the officials of the port, to have at once set men to calk the decks and outside of the vessel, which was the only repair tb^t could be executed in her position at the time.^ On the 28th Jan- nary he wrote to apologize for the delay in furnishiug the particulars requested of him, and explained that Messrs. Langlands had been pur- suing the examiniition, and had not yet finished their report, although he had impressed upon them the importance of haste. On the 30th Jan- uary a report of the repairs required was furnished by Messrs. Lang- lands, and forwarded by Lieutenant Waddell to the colonial govern- ment. It was to the effect that it would be necessary to place [95] the vessel on the slip.^ On^ the same day, and before *granting permission for this purpose, the governor appointed a board of three officers, one of whom was the government engineer, to proceed on board the Shenandoah, and report whether she was then in a fit state to go to sea, or what repairs were necessary. This board had the ves- sel examined by a diver, and reported on the 1st of February that she was not in a fit state to proceed to sea as a steamship ; that repairs were necessary, and that the extent of the damage could not be ascer- tained without the vessel being slipped.* Permission was thereupon granted for placing the vessel upon the slip, which had originally been built by the government, but was at that time in the hands of a private firm. In reply to a renewed inquiry. Lieutenant Waddell stated the nature of the supplies required by him, which consisted of fresh provisions daily for the crew, and stores of wine, spirits, lime-juice, and clothing.^ Of these he received permission to ship such quantities as might reason- ably be necessary. An application which he made to be allowed to land some surplus stores was refused, on the advice of the attorney-general, as being inconsistent with the proper observance of neutrality f and he was afterward informed that, for the same reason, the use of appli- ances which were the property of the government could not be granted, nor any assistance rendered by it, directly or indirectly, toward effect- ing the repairs of the Shenandoah.'' The governor had also given directions that the officials of the port should furnish him with daily reports of the progress made in repairing and provisioning the vessel, and that every precaution should be taken against her armament being increased or rendered more effective.^ The reports received not showing sufficient progress in the repairs, a letter was addressed to Lieutenant Waddell on the 7th February, desir- ing him to name a day for proceeding to sea. Lieutenant Waddell ' Appendix to British Case, vol. 1, p. 511 ; vol. v, p. 65. ' Ibid., vol. i, p. 529 ; vol. v, p. 79. I 3 Ibid., vol. i, p. 640 ; vol. v, p. 69. i 1 Ibid., vol. 1, p. 51S ; vol. v, p. 73. 5 Ibid., vol. i, pp. 517 and 641 ; vol. v, pp. 69, 70. Ibid., vol. i, pp. 520, 552 ; vol. v, pp. 75, 76. ' Ibid., vol. i, p. 642 ; vol. v, p. 77. s Ibid., vol. i, p. 529 ; vol. v, p. 74. 330 • TEEATY OF WASHINGTOiST. explained the delay whicli had takea place as arising from the recent gales, which had prevented him from lightening the vessel.' It will be seen by the reports from the officials of the port that the Shenandoah had broken adrift from her mooring.^ The state of the tides further interfered with the process of getting her on the slip, which was at last effected on the 10th February. The board of officers appointed by the governor then again examined the vessel, and reported that the repairs necessary to render her seaworthy could be effected in about five clear working-days.^ On the 14th February Lieutenant Waddell was again requested to state when the Shenandoah would be ready to put to sea, and he replied that she would be ready for launching on the afternoon of the next day; that he had then to take in all his stores and coals, and to swing the ship ; and that he hoped to proceed to sea in her by Sunday, the 19th instant.* In the meanwhile the consul of the United States had, since the arri- val of the Shenandoah at Melbourne, continued to address protests to the governor, denouncing the vessel as a pirate, and contending that she was not entitled to be considered as a ship of war, and that it was the duty of the govern ment to seize and detain her. These communi- cations, which were accompanied by various affidavits of persons who had been taken off American merchant- vessels captured and destroyed by her, were submitted to the legal advisers of the colonial government. They reported their opinion that there was no evidence of any act of piracy committed by any person on board the ship, and that she pur- ported to be, and should be treated as, a ship of war belonging to a bellig- erent power.5 An answer to this effect was accordingly sent to the consul.^ On the 10th February the consul forwarded an affidavit taken before him by a man who had lately been cook on board the ship, which tended to show that men had joined her from the colony, and were at that time concealed on board of her.'' The matter was at once placed in the hands of the police; and, evidence having been obtained to identify one of the persons suspected, a warrant was issued for his arrest on the 13th February.^ On the evening of the same day a police officer went on board for the purposeof arresting the men; but both on that occasion and on the,following morning he was refused permission to go over the vessel for the purpose, Lieutenant Waddell pledging his word of honor as an officer and a gen- tleman that he "had not any one on board, had not engaged any one, and would not do so while lie was at Melbourne," and declaring that he would rather fight his ship than allow her to be searched for the man.' The matter was laid by the governor before the executive council [96] on the same day. The *Shenandoah was at this time on the slip, although nearly ready to be launched. A letter was addressed to Lieutenant Waddell calling on him to reconsider his determination, and intimating that, in the meanwhihi, the permission to repair and take in supplies were suspended. A proclamation was at the same time issued by the governor forbidding Her Majesty's subjects to render any aid or assist. 1 Appendix to British Case, vol. i, pp. 542, 643 ; vol. v, p. 77. ^ Ibid., vol. j, p. 529 ; vol. v, p. 80. = Ibid., vol. i, p. 522 ; vol. v, p. 78. ■> Ibid., vol. i, p. 643 ; vol. v, p. 78. 5 Ibid., vol. i, p. 515; vol v, p. 88. 'Ibid., vol. pp. 593, 617; vol. v, p. 68. 'Ibid., vol. i, p. 606; vol. v, p. 107. « Ibid., vol. i, p. 536. nbid., vol. i, p. 524; vol. v, p. 109. COUNTER CASE OF GREAT BEITAIX. 331 aiice to the Shenandoah, and a body of 100 police and military were or- dered down by telegraph to seize the ship. This they proceeded to do the same afternoon. About 10 o'clock in the evening four men were seen- to leave the vessel in a boat pulled by two watermen. They were fol- lowed and arrested, and one of ^them proved to be the man against whom the warrant had been issued.^ Lieutenant Waddell wrote to protest against the course which had been taken. He denied that the execution of the warrant had been re- fused, as there was no such person as therein specified on board. He- added thM all strangers had been sent out of the ship ; and that, after a thorough search by two commissioned officers, it had been reported to him that no one could be found on board except those who had entered the poi't as a part of the Shenandoah's complement of men. " I, there- fore," he wrote, "as commander of this ship, representing my govern- ment in British waters, have to inform his excelleucy that there are no persons on board this ship except those whose names are on our shipping articles ; and that no one has been enlisted in the service of the Confed- erate States since my arrival at this port, nor have I, in any way, vio- lated the neutrality of the port.'" This letter was laid by the governor before his council on the 15th of February, together with one from the lessee of the slip. The letter stated that, should a gale of wind come on, it would be necessary either to launch the Shenandoah, or to run a great risk of her sustaining serious damage in consequence of her unsafe position, and that the government must take the responsibility of any expenses which might be incurred. As the object in view had been secured by the arrest of the men, it was decided, under these cir- cuit stances, to withdraw the previous prohibition, and to allow the launch of the vessel. iLieatenant Waddell was informed that this had been done on the faith of the assurance he had given; but his attention was called to the fact that the four men arrested had been on board his ship, and he was told that he would be expected to use all dispatch, so as to insure his departure by the day named by him, the 19tb.^ The Shenandoah was accordingly launched on the evening of the 15th February; she reshipped, from a lighter, the stores which had been dis- charged: before placing her on the slip, and, after taking on board sup- plies and coal, she left Melbourne at half past 7 o'clock on the morning of the 18th of February, being one day sooner than was expected. It is right to say that Lieutenant Waddell wrote to deny that the four men arrested had been on board with his knowledge ; they had, he said, been ordered out of the vessel by the ship's police, who had only succeeded in discovering them after the third search.* The officers of the Shenandoah also published, in one of the newspapers, denials of any complicity in the matter on their part. During the two days which elapsed between the launch of the Shen- andoah and her departure from the colony, the most careful vigilance was enjoined ou the authorities to prevent any violation of the foreign- enlistment act. A reference, however, to the nature of the harbor, and to the circumstances of the case, will show how difficult it was to take effectual precautions for this purpose. Hobspu's Bay, the harbor of Melbourne, is the inland termination of Port Phillip, a large basin of irregular oval shape, some .60 or 70 miles in circuit, with a narrow en- trance to the sea. Such a conformation of coast offered great facilities lAppendix to Britisli Case, vol. i, pp. 525-527 ; vol. v, pp. 109-112. °Ibid., vol. i, p. 644; vol. v, p. 110. sibid., vol. i, p. 645; vol. v, p. 112. 1 1bid., vol. i, p. 646 ; vol. v, p. 113. 332 TREATY OF WASHINGTON. for sending off men from different parts of the bay, who could be shipped on board the Shenandoah either before or immediately after she had passed this narrow entrance. There was no British vessel of war at or near Melbourne to which the duty of watching or controlling the move- ments of the vessel could be assigned. ^ The legal advisers of the colonial government, when consulted on the questipn, had declared that they were not prepared to advise that the execution of a warrant on board of her could properly be enforced at all hazards ;'■ and this opinion was afterward confirmed by that of the law-officers of the Crown in England.^ All, therefore, that could be done was to enjoin such supervision as «ould be exercised by the water-police of the port while the Shenan- doah was at anchor, and to give orders to the pilot not to allow any boat to come alongside, or any person to come on board, from the time of her weighing anchor till he left her.= With regard to the first of these two measures it is not difacult to perceive that to keep effectual watch [97J *over a vessel which is shipping coals and stores in a harbor from two to three miles wide at the place where she is anchored, in the midst of some two hundred or more vessels of every kind, must be no easy matter, even if a larger force were employed than could be available for the purpose on this occasion. With regard to the latter precaution it is evident that everything must depend on the good faith of the pilot, and his ability to carry out his instructions. After the Shenandoah had left Melbourne, it became a matter of public report that some men had joined her before her departure, and the number, which was no doubt much exaggerated, was stated to be as high as fifty or sixty. The inquiries made afterward by the police resulted in the identification of some eighteen or twenty persons alto- gether, who had left the colony and were believed to be on board of the ship. Of these it appeared that seven had been employed in shipping coals, and they went on board in the night or early morning before her departure, on the pretense of getting paid for their work, but did not return. It further appeared that, about 9 o'clock on the night of the 17th of February, some men had been collected on the railway-pier of Sandridge, a suburb of Melbourne. The pier in question is the terminus of a railway from the town of Melbourne, and there is a communication by a steam-ferry to Williamstown, which is on the opposite side of the bay, about two and one-half miles distant, and where the patent slip ^nd the station of the water-police are situated. The Shenandoah was at anchor in the bay between Williamstown and Sandridge. From the statement of one of the boatmen employed, the men in question must liave dispersed into some wooded land a short distance off at the time when the boat of the water-police came round to that part of the har- bor, and thus avoided observation. After the boat had rowed off to the opposite side the men seem to have returned in small jjarties, and gone off from the pier in watermen's boats, which put them on board the Shenandoah. How many of them were part of the original crew returning to the vessel from the shore, and whether any were new hands, there is nothing to show. The police constable on duty saw the boats after they had started and when they were returning, but had of course no means of investigating this question.* It seems indeed, from the wording of his report, as though the darkness or the distance prevented his seeing whether the boats did or did not actually go to the ' Appendix to British Case, vol. i, p. 526. 2 Ibid., vol. i, p. 558. 3 Ibid., vol. V, p. 84. ■» Ibid., vol. i, pp. 551-553 ; vol. v, pp. 117-122. COUNTER CASE OF GEEAT BRITAIN. 333 vessel ; all that is stated is that they went in that direction. A man of the name of Bobbins went up to the American consulate, where he arrived about 11 o'clock at night, and stated what was taking place. The American consul sent him back to give information to the water- police at Williamstown, a distance in all about five miles by land and water, where he must have arrived too late for any interference or inquiry.^ At about 5 o'clock the same afternoon, another man, of the name of Forbes had come to the American consul with a statement that he had seen five men at Sandridge, one of whom had told him that they were going out in a vessel called the Maria Eoss, to join the Shenandoah when she got into the open sea beyond the jurisdiction of the port. The consul took the man to the office of the Crown law-ofiBcers, which had been closed some time before, but where he met the Crown solicitor, who had accidentally returned. It does not fall within the powers or- duties of that officer to take depositions or issue warrants, and he re- ferred the consul to a magistrate as the proper person to go to. The consul then proceeded to the Houses of Parliament, and placed the matter before the attorney-general, who offered to lay the matter before the government if furnished with an affidavit. Instead of complying with this suggestion, the consul applied to the chief of police, who natu- rally declined to act without a warrant, but suggested, as the Crown solicitor had done, that the consul should apply to a magistrate for the I)urpose. The consul accordingly went on to a police magistrate in, Melbourne. This latter, after examining Forbes, did not feel justified in granting a warrant on such testimony alone, and he advised that application should be made to the water police at Williamstown, who might be able to furnish corroborative evidence. This advice the con- sul did not think lit to act upon. He returned home, took the man's deposition himself, and determined to forward it to the attorney-gen- eral, to be laid before the government, but he did not do this until the following morning, after both the Shenandoah and the Maria Eoss had sailed. It is not true that (,as alleged in the case of the United States), " he could get no one to attend to his representations." On the con- trary, they received, according to his own evidence, "patient" atten- tion from the attorney-general, as well as from the magistrate to whom he had recourse, and they advised him what to do;^ he did not follow that advice, and he is certainly more justly chargeable with a want of due diligence than those who, though unable to issue the war- [98J rant he asked for, did their best .to put him in the *right way to obtain it. The Maria Eoss was, htfwever, twice searched before leaving the bay, and the mate, who was afterward examined, denied most positively that she had taken any passengers, or that any men were concealed on board of her.^ Such, as far as is known to Her Majesty's government, is all the information which the authorities of Melbourne were able to obtain as to the alleged shipment of men from the colony on board the Shenan- doah. It was furnished, for the most part, to the police by the boat- men who had been employed in putting the men on board, on the under- standing that they should not themselves suffer on account of what had been done. Of the four men who had been arrested on tlie night of the 14th, one claimed to be an American citizen and was discharged ; the other three were remanded, and, after a month's imprisonment, brought 1 Appendix to Biitish Case. vol. i, p. 587. ^Ibid., vol. i, pp. 587, 618. 3 Ibid., vol. 1, p. 554 ; vol. v, p. 120. 334 TREATY OF WASHINGTON. to trial. Two of them were then convicted and sentenced to further imprisonment; the third, a boy of seventeen, was discharged. The governor, in reporting these facts, announced his intention of refusing the hospitalities of a neutral port to Lieutenant Waddell and the other ofiftcers of the Shenandoah, should they revisit the colony.^ He wrote also to the governors of l^ew Zealand and the other Australian colonies, and to the commander of the British naval forces on the station, to warn them of what had occurred. Having thus recounted the facts of the yisit of the Shenandoah to Melbourne, Her Britannic Majesty's government proceeds to notice the more important of the complaints made in the case of the United States, respecting the manner in which that vessel and her officers were re- ceived and treated by the authorities. Some of these contradict one another. For instance, at page 426 of the Case, it is imputed as a delin- -quency that Lieutenant WaddelFs application for permission to repair was not officially answered till after the twenty-four hours allowed by the instructions of January, 1862, for his stay had expired; a statement which is supported by no evidence, and which, from the terms of the United States consul's report to his own Government, appears highly improbable. It will there be seen that the Shenandoah enteredthe bay about 8 o'clock p. m. on the 25th of January,^ and that the consul re- ceived, at 3.30 p .m. on the next day, a communication from the govern- ment respecting the prisoners whom Lieutenant Waddell desired to land; this communication having been decided on, and no doubt sent at the same time as the answer to Lieutenant Waddell's ap plica Lion.' But almost immediately afterward it is mentioned, apparently as still more reprehensible, that the officer who took Lieutenant Waddell's letter on shore returned with an affirmative answer the same night.* If it was wrong to delay the official answer, it is difficult to understand what exception could be taken to sending a verbal reply at once ; but it will have been seen by the narrative given above, that this second state- ment is also incorrect, and that the bearer was only informed that the letter would receive early attention. In the Case of the United States, objection is taken to the permission which was given to Lieutenant Waddell to take on board 250 tons of coal while at Melbourne; and a minute examination is attempted of the nature of the repairs supposed to have been made, with an elaborate estimate of the time in which they might have been completed, if pushed on with rapidity, and if nothing had occurred to delay them. " It is difficult," the Case says, " under the circumstances, to resist the conclu- sion that the repairs were dawdled along for the purpose of securing the recruits, and that the authorities, to say the least, shut their eyes while this was going on." At this distance of time and place, when all the jiarticular circumstances cannot be exactly known, it seems to Her Britannic Majesty's government that it could scarcely serve any useful purpose to follow all the details of a technical argument which is founded largely on conjecture. What, indeed, could be less reasonable than that the arbitrators should now be asked, in a case of this kind, to set aside the estimates made on the spot and at the time by government ^Appendix to British Case, vol. i, p. 550. ^Appendix to the Case of the United States, vol. vi, p. 588. 3 See Appendix to British Case, vol. i, p. 511. It is stated In one of the newspapers sent home by the American consul, that the reply was known on board the Shenan- doah between 3 and 4 o'clock, (Appendix to Case of United States, vol. vi p 652 ) ^This is stated on the authority of a published account of the cruise of tfh'e Shenan- doah by one of her ofaoers, which in other respects also gives a very inaccurate account •of the communications between Lieutenant Waddell and the colonial authorities COUNTER CASE OF GREAT BRITAIN. 335 officers and experienced professional men, on the strength of a merely conjectural estimate suggested by the United States, which takes no account of local circumstances, and, on no better ground than this, to impute negligence and connivance to the authorities of an important British colony 1 The Shenandoah arrived at Melbourne during a period of exceedingly severe weather.^ She was obliged, according to the showing of the United States themselves, to depend upon her steam power, on ac- [99J count of the inadequacy of her crew. In this manner she *had expended a considerable portion of her original supply of coal, and had worn out the machinery of her screw. She thus came into Mel- bourne in a partially disabled state, and requested and obtained per- mission to make good her defects and to replenish her coal. The United States have sought to draw a contrast between her treatment there, and that of a vessel of the United States N.'ivy at Barbados. The difference, however, really lay not so much in the treatment as in the circumstances of the two vessels and the temper of their respect- ive' commanders. The Shenandoah was not allowed to remain in port on the mere word of Lieutenant Waddell, but was twice sub- jected to the examination of a board of ofScers appointed by the gov- ernor for the purpose, who certified that she was in need of repairs. To this examination Lieutenant Waddell assented without any demur. Captain Boggs, on the other hand, who was distant from the ports of his own country about as many hundreds of miles as Lieutenant Wad- dell was thousands, took offense at a request that he would give an assurance of his inability to put to sea, and preferred to leave the port at once. It was not the intention of the orders of January, 1862, that a vessel should be dismissed summarily from a port in a distant colony, many thousands of. miles from her own ports, in a crippled state, in which her crew would be inadequate to manage her. It is objected that the repairs were "dawdled" — and this when, a few pages before, attention has been drawn^ to a passage in one of Lieutenant Waddell's letters, to show that be had commenced the repairs at once, befoj'e a report had been furnished of what was, required. On reference to the copies of correspondence sent home at the time, and to those since re- ceived from the present governor, it is found that the sentence referred to (" the other repairs are progressing rapidly ") did not occur in Lieutenant Waddell's original letter, though inserted in the copy pub- lished in the colonial newvspapers, from which the quotation, in the Case of the United States, is made.^ It is, however, true that, with a view to complete the repairs as soon as possible, men were employed to calk the vessel as soon as permission to repair was received. The nature of the weather, which was very rough, probably rendered it impossible to send down a diver to examine the vessel for the first few days, and the state of the tides seems to have occasioned some further delay in getting her on to the slip, but in other respects the repairs were pushed on with all possible rapidity and completed within the time estimated for them. Lieutenant Waddell expressed throughout his anxiety to shorten his stay, and probably with truth, if, as may be gathered from the correspondence, his men were deserting. The steps taken for examining the vessel, the vigilance enjoined on the authori- ties of the port, the daily reports required from them as to the progress of repairs, and the reiterated request to Lieutensfnt Waddell to fix a ■-Case of the United States, p. 421. ajbid., p. 427. . 2 See Appendix to British Case, vol. v., p. 68. ^ 336 TREATY OF WASHINGTON. day for his departure, certainly show no laxity or indisposition on the part of the colonial government to prevent any abuse of the permission granted by it. ,• . , On the question of the enlistment of men, and the proceedings taken against the offenders, it is remarked, in the Case of the United States, that the authorities "carefully let alone Captain Waddell and his offi- cers, who had been violating Her Majesty's proclamation and the laws of the empire, and they aimed the thunders of the law against an assistant cook." The facts are, in the first place, that there was evi- dence against the seamen arrested, and suspicion only against the commander; and, in the second place, that the arrest, on a charge of this kind, of the commanding officer of a foreign ship of war who may happen to be ashore (on board, of course, he is secure from it) is a far graver matter than seems to be supposed, and is, indeed, an extreme measure which only very extraordinary circumstances could justify. The local authorities received up to the last the most positive assur- ances from Lieutenant Waddell that he had not added to his crew, and had not violated, and would not violate, the neutrality of the port. They took every precaution in their power to insure the performance of this promise ; and if their efforts were not altogether successful, this must be attributed to the difficulties they had to deal with, the inade- quacy of the means at their disposal, and to the reliance which they placed on the word of one whom they knew to be an American officer, and might, therefore, reasonably believe to be a gentleman and worthy of credit. A case (with which the arbitrators are already acquainted)^ of the- reception of some men on board a vessel of war of the United States at Cork shows that such occurrences may, at the time, escape the no- tice not only of the authorities, but also of the commander of the ves- sel. On the occasion referred to, sixteen men were shipped on board the United States war-steamer Kearsarge. The fact was not known until the vessel had sailed for Prance; and on her return to Cork, [100] a month afterward, the men were sent on shore by * the captain^ with a declaration that they had been shipped without his knowledge and contrary to his instructions. Six of the men were pros- ecuted, but were discharged without punishment, as having prob- ably been unaware of the nature of the offense they were committing. Evidence having been produced to implicate some of the inferior offi- cers of the vessel, representations were addressed to the Government of the United States upon the subject, and the latter expressed their willingness to institute an investigation when the Kearsarge returned home. The course adopted on this occasion certainly did not differ, on the side of severity, from that pursued toward the Shenandoah. JSTpr is it doubtful to Her Majesty's government that if on that occasion Captain Winslow had been arrested in the streets of Cork, this would have been regarded as somewhat more than due diligence by the Gov- ernment of the United States. There is a further statement in this part of the Case of the United States which Her Britannic Majesty's government approaches with re- gret. At page 430 mention is made of a discussion which took place in the legislative assembly at Melbourne as to the reception of the Shenan- doah and her supposed identity with the Sea King. The chief secre- tary stated that ''in dealing with the vessel they (the government) had ' See British Case, p. 154. ^ COUNTER CASE OF GREAT BRITAIN. 337 not only to consider the terms of the proclamation of neutrality, but also the confidential instructions of the home government!" On this it is remarked': "Here the United States learned for the first time that, in addition to the published instructions which were made known to the world, there were private and confidential, and perhaps conflicting, instructions on this subject." Her Britannic Majesty's government thinks that it will best consult its feelings of self-respect by leaving unnoticed the insinuation conveyed in this passage. It is no doubt true — and to persons possessing ordinary acquaintance with the details of administrative government, it cannot appear surprising — that, in addition to the published instructions to governors of colonies, other instructions were sent from time to time, some of them explanatory of those published instructions, others supplementary to them, as cases arose to show the necessity of such explanations and additions. Such of these as were sent to the governor of Victoria, and have any bear- ing on the matter, are now laid before the tribunal in the Appendix.^ Among these instructions will be found one dated the 12th of Decem- ber, 1863, which inclosed copies of certain correspondence respecting the visit of the Alabama to the Cape of Good Hope. All the material papers in this correspondence have already been laid before the tribu- nal.^ Among them will be found a report from the English law-offtcers of the Crown, in which the following passage occurs : With respect to the Alabama herself, we are clearly of opinion that neither the governor nor any other authority at the Cape could exercise any jurisdiction over her, and that, -whatever was her previous history, they were hound to treat her as a ship of war belonging to a belligerent power. It will have been seen that these last words were reproduced in the answer returned to the representations of the United States consul at Melbourne, on the 30th of January, 1865.' That these were the par- ticular papers alluded to by the chief secretary is moreover obvious from the context of the speech, in which he mentions that the govern- ment had " before them the case of a vessel in exactly the same posi- tion as the Shenandoah." It may not be within the knowledge of the tribunal that the reports of the English law-officers of the Crown to Her Majesty's secretary of state for foreign affairs have, according to invariable custom, been hitherto considered as documents of a strictly confidential nature, to.be made known to none but the executive offi- cers of the government. This rule has now for the first time been de- parted from, through the anxiety of Her Britannic Majesty's govern- ment that the arbitrators should have before them all materials which could be made available for enabling them to form a correct judgment on the questions submitted to them. Into the subsequent history of the Shenandoah it is needless to enter. It has been accurately told in the British Case, and there is clearly nothing in it which could impose any responsibility whatever on this country. ^ • The United States must be well aware that, on account of the original outfit of the Shenandoah, they have no just claim against Great Britain. A sense of this, indeed, plainly betrays itself in the Case. An effort is therefore made to found a .claim upon the circumstance that this vessel was admitted, in a remote colony of theBritishEmpire, to the ordinary hospitalities of a neutral port, and upon what occurred during her visit there. The charges which it is endeavored to establish 1 Appendix to British Case, vol. v, pp. 125-131. ^ Ibid., vol. i, pp. 300, 306, 313, 322. 3Ibid., vol. i, p. 593. 22 a— n 338 TREATY OF WASHINGTON. against the authorities of the colony, and through them against [101] Great Britain, are, in substance, two. One is, that she *was suffered to repair her steam machinery, which is admitted to have been in need of repair, although (it is objected) she was not shown to be unseaworthy as a sailing ship. It would be difficult to- im- agine a much less reasonable complaint. The colonial authorities were right in giving this permission, which was given at Brest to the Florida, in spite of the remonstrances of the United States minister, and which is thoroughly sanctioned by custom. They would, indeed, have been guilty of a reprehensible refusal of ordinary hospitality if they had not given it. The other charge is, that the vessel obtained in the port some addition to her crew, and that this was done with the con- nivance of the authorities of the colony. As the chief proof of connivance, it has been insisted that the ship remained in the port, un- dergoing repairs, a few days longer than the United States suppose to have been absolutely necessary. Again, to prove even this, which, if established, would be not merely inconclusive, but almost immaterial, there is a struggle against plain facts; and there is an endeavor to substitute conjectural estimates for those made on the spot, and at the time; circumstances are passed over which should have been taken into account; there are imputations of inattention where there was none, and suggestions of bad faith, to which the best answer is silence. Such is the character of the argument of the United States on this point. It has been answered step by step. But Her Majesty's govern- ment deems it right to add one observation, the truth of which will hardly be disputed in any maritime country. The act here alleged — the recruitment of seamen in a neutral port — is one which is difficult.and well nigh impossi|ple for the local authorities to prevent altogether, by any reasonable precautions of their .own, -which would not be deemed offensive by a belligerent. It is necessary, therefore, either wholly to exclude belligerent ships of war from access to, and refuge in, neutral harbors, or to place some reliance on the word of the commanding offi- cer, and on that honorable understanding which, while it surrounds the vessel on her entrance with a peculiar immunity from the exercise of local jurisdiction, binds her at the same time to respect the sovereignty and neutral rights of the nation whose hospitality she enjoys. It is practically necessary to rely much on this understanding, and it is cus- tomary to do so. It has never been held that the duty of the neutral authorities is to surround a foreign ship of war with spies, to dog the steps of her officers, refuse credit to their solemn assurances, or issue warrants against them on suspicion. No neutral power would under- take to do this, and no belligerent would endure it patiently. Great Britain has never hitherto hesitated to trust American officers, as she trusts those of other countries ; and she did not deem herself bound to withdraw that customary confidence from officers whom civil dissension had armed against their own country, and who were engaged in an unhappy contest, .which she sincerely deplored. [102] *PARTVIII. THE CLARENCE, TACONY, ARCHER, TUSCALOOSA, TALLAHASSEE, CHICKAMAUGA, AND RETRIBUTION. In respect of these vessels (with perhaps one exception, whict will be noticed presently) no failure of duty on the part of Great Paut VIIL— ThB Britain is expressly or distinctly alleged by the United Arch°r'and Tmca^ States. As to the tirst four, it is only insisted that, as tbey '°™"- were armed and employed as tenders by vessels in respect of which there is alleged to have been a failure of duty, Great Britain ought to be charged with the losses occasioned by them to the United States. THE TALLAHASSEE AND CHICKAMAUGA. Her Majesty's government has little information respecting the ear- lier history of these two vessels, beyond what may be gath- r^^ Taiiaha..ee ered from documents presented to the arbitrators by the »>"> chkkamauea. (United States. From this source it. may be collected that they were two out of a number of steamers built in England for blockade-running,. and all alike, or nearly alike, in construction. They were built for speed, with double screws. There is no pretense for saying that either of them was, either wholly or in part, specially adapted within British territory for warlike use ; nor has this been alleged by the United States, It is clear that they were without any such special adaptation. Both of ■them had been noticed, before they originally left England, 9 .rieasonaWe proportion, not only to the loss consequent on the act or -,Oimission, but to the gravity of the act or omission itself. A slight de- .faMltmay h^ve in some way ctatribnted to a very great injury; but it i§ by no means true that, in such a case, the greatness of the loss is to jbie Tiegarded as furnishing the just measure of reparation, without regard to the venial character of the default. It is needless to ishow this by ^examples. Many illustrations of it will suggest themselves to the minds iQf the arbitrators. Th,ere iUiay be cases, doubtless, in which considerations of this kind do not demand to be taken into account. But it is manifest that they apply very forcibly to defaults such as are charged, and claims such as .are made, by the United States against Great Britain. The substance .of the charge in this class of cases is, that a belligerent has been enabled to make use of some spot within the neutral territory for purposes of war, tjirough a relaxation of the care which the neutral government ought to have exerted to prevent it. It is not true that the default of the neutral is the cause of the losses sustained. It is certainly not the caViSa causans ; it need not even be the cama sine qua non. The most that can be alleged is that, if greater diligence had been used, those losses might perhaps have been prevented, and, at all events, would not have happened by the same means and in the same way. The losses complained of are losses inflicted by the ordinary and legitimate x)perations of war, which are alleged to have been facilitated by the neglect of the neutral. But the active and direct agent in the infliction of loss' is the belligerent, and he inflicts it in ways which, as between him and Ms enemy, are lawful; the only share in it which can be ascribed to the neutral is indirect and passive, and consists in an unin- tentional omission. Further, if we attcimpt to pursue this share of .liability,' springing from neglect alone, through the operations, naval or miUtary, to which the neglect is alleged to have contributed-:-^through successive battles, through a cruise or a campaiga— we see that it es- capes from any precise estimate, and soon loses itself among the mul- titude of causes, -positive or negative, direct or indirect, distinct or ob- .^pure, which combine to give success to one belligerent or the other, and to^ which the proverbial uncertainty of war is due. This is clearly seen when \the principle is applied to the case of a ship which has been armed or adapted for war, or has had her warlike force augmented, in neutral territory. We speak, for the sake of brevity, of the " acts " of a ship, 4f prices made or losses inflicted by her, as if the power and responsi- bility of doing hurt adhered to the vessel herself. But the acts of a ,S:hip are ithie acts of the persons who have possession, and control of her; the jShip herself-^wiiich is only a vehicle of wood or iron, serving, if armed, tl),e p:urpose of a floating fortressT^is but the instrument, or lather one of the instruments, with which those acts are done. The same thing is seen more clearly still when we come to apply the prMciple to cases where thje equipment or adaptation is jnanifest but ;^ar|i_al. A (d&nger h pre arises of being misled by a false analogy. Any ^qmpm^t, hojs?ev^r partial, in a neutral port, such as the shipping of a ,gun, the cutting of a porthole, the addition of a magazine or shell-room to ?^ internal sfittings of a ship, might justify the neutral powfir in r^^tpringajl prizes made by her during the crnise to which the partial jeqoipment was applied, and afterward brought within the neutral terri- tmj- The ground on which the restitution is decreed here is, that there has been a violation of the neutrality of the territory ; and it matters iigjt wWther thiat violation were great x)r spaall. But if, in such a case, it bje possible to show that the partial equipment had been made through 380 TEEATY OF WASHINGTON. neglect oq the part of the authorities of the port, and if reparation for the neglect be demanded, how are we to assess the liability of the neutral ? To assigu the whole damage which the ship may do during her cruise to the neglect of the neutral, would be extravagantly unjust; to allot with precision any specific proportion of it to the same cause, would almost certainly be impracticable. Further, when the neutral country from which a ship of war, or an equipment, or an augmentation of force has been obtained, is only one of several countries to which the belligerent has access for similar pur- poses, it is impossible to assume that the consequence of the preven- tion of a particular adventure of this kind would have been to deprive that belligerent of the means of accomplishing his purpose ; its only effect might have been to change the immediate direction of his endeav- ors. Thus, in the case of the rams at Birkenhead, the responsibility arising out of the contract between the builders and Bullock iyas sought to be got rid of, by a transfer of the benefit of that contract to a [132] *Frenchman named Bravay, who pretended that his object was to dispose of them to other powers, and not to the Confederate States ; and when the confederate agents found it impracticable to obtain those vessels from a British port, they succeeded in procuring and carrying to sea another similar ram, the Stonewall, from a port in France. When any vessels, whether procured from Great Britain or otherwise obtained, had become confederate ships of war, the duty of repelling their hostile proceedings by all proper and efficient means (like the rest of the operations necessary for the conduct of the war) devolved exclu- sively upon the United States, and not upou the British government.' Over the measure taken by the United States for that purpose Great Britain could exercise no influence or control ; qor can she be held respon- sible, in any degree, for their delay, their neglect, or their insufficiency Any want of skill or success, even in the operations by land, would have the eifect of prolonging the period during which cruisers of this nature could be continued. All losses, which might have been prevented by the use of more skillful or more energetic means, ought justly to be ascribed to a want of due diligence on the part of the Government of the United States, and not to any error, at an earlier stage, of the British government. Causa proxima, non remota spectatur. In short, there are difUculties of no inconsiderable force in holding that defaults of this class draw with them any definite liability to make pecuniary reparation. It is difficult — very often it is practically impos- sible — to ascertain, with any approach to accuracy, what measure of loss ought with justice to be ascribed to the default complained of, or even, perhaps, whether it was a substantial cause of any loss at all. For this reason, probably, as well as from the reluctance usually felt to bring accusations of negligence against a friendly government, claims such as the United States now urge against Great Britain have rarely been made; and have never, so far as Her Majesty's government is aware, been conceded or recognized. Where prizes made by vessels armed for war, or which have augmented their warlike force, within neutral territory, have afterward been brought within the jurisdiction of the neutral, it is the acknowledged right, and it may be the duty, of the neutral power to cause them to be restored on application. Beyond this point no recognized neutral authority or established precedent has hitherto extended the liability of the neutral. If the conduct of the United States under similar (or, rather, under much stronger) circumstances, were made the measure of their right to COUNTER CASE OP GREAT BRITAIN. . 381 indemDiflcation in the present inquiry ; if the rule of compensation were sought in the precedent (to which they have themselves, in their own Case, appealed) of the treaty of 1794, jbetween the United States and Great Britain, and in the decisions of the commissions under the seventh article of that treaty, no pecuniary compensation whatever could be found due from Great Britain for any captures made at sea, and not brought into British ports ; although the vessels which made those cap- tures may have been illegally fitted out in, and dispatched from, British ports, through some want of due diligence on the part of British author- ities. If the relative positions of the government of the Confederate States and its officers, to whose acts the losses in question are directly attribu- table, and of the British government (whose neutrality they violated) toward the United States, who now make these claims, are justly esti- mated, the,more difficult it will be to see how (upon the supposition of a want of due diligence on the part of Great Britain in guarding her own neutrality) any pecuniary compensation whatever can be claimed from Great Britain. The whole responsibility of the acts which caused these- losses belonged, primarily, to the Confederate States; they were all done by them, beyond the jurisdiction and control of Great Britain ; wrong was done by them to Great Britain, in the very infraction of her laws, which constitutes the foundation of the present claims. But from them no pecuniary reparation whatever for these losses has been, or is now, exacted by the conquerors ; what has been condoned to the prin- cipals is sought to be exacted from those who were, at the most, passively accessory to those losses, through a wrong done to them and against their will. The very States which did the wrong are part of the United States, who now seek to throw the pecuniary liability for that wrong solely and exclusively upqn Great Britain, herself (as far, at least, as they are concerned) the injured party. They have been re-admitted to their former full participation in the rights and privileges of the Federal Constitution ; they send their members to the Senate and the House of Eepresentatives ; they take part in the election of the President ; they would share in any benefit which the public revenue of the United States might derive from whatever might be awarded by the arbitrators- to be paid by Great Britain. On what principle of international equity 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 ? [133] *The British government, however, while deeming it right to present these considerations to the notice of the arbitrators, will not omit to deal with the ulterior questions which must arise, in- the event of the arbitrators being of opinion that claims of this nature are no,t absolutely inadmissible, should the United States succeed in. estabhshing any failure of duty sufacient to support them in the judg- ment of the tribunal. Nor does it affirm that, in that case, no award of compensation ought to be made, unless the amount of loss properly as- signable to the default can be estimated with exact precision. But it firmly maintaiDS that the duty intrusted to the tribunal would not be satisfied by finding, as to any particular ship, that Great Britain had failed to discharge some international duty, and then proceeding at once to charge her with all the losses directly occasioned to the United States by the operations of that ship. This, indeed, would be so mani- fest an Injustice that it is needless to argue against it. Should the- 382 TREATY OF WASHINGTON. 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 de- termined, or the aggregate of such liabilities, as the case may be, con- stitutes, 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 comput- ing the sum to be awarded. The power of awarding a gross sum does not, it need hardly be observed, authorize the arbitrators to depart, in substance, from this basis, although it may relieve them from the neces-- sity of a minute inquiry into the particulars of alleged losses, and from intricate and |)erhaps inconclusive calculations. The arbitrators will have observed the manner in which these claims are dealt with in the Case of the United States. Specific failures of^ duty on the part of Great Britain are alleged in respect of each of the vessels enumerated. Great Britain is then charged indiscriminately' with all the losses occasioned by the acts of all the vessels, and, in addi*- tion, with expenses said to have been incurred by the Government of the United States in vainly endeavoring to capture theM. Thus, the Florida and Alabama were obtained as unarmed vessels from England; one was armed in Portuguese wateirs; the other was manned and mader capable of cruising in a confederate port. Great Britain is called upon to pay for all the losses which can be attributed to the Florida^; and Alabama — nay, more, for all losses occasioned by other vfessels whicli: were captured and armed at sea by the commanders of those' cruisers. The Tallahassee was built as a trading- vessel in England, and wasi afterwiard converted into a ship of war in the Confederate Stiates. This country is to pay for all the captures of the Tallahassee. The Sumter received ordinary hospitalities in a British port; and^ Great Britain is to be charged with captures made by the Sumter. Int^test on the amount of these losses and expenses is also asked for, to be com- puted at seven per cent, per annum from' the 1st July, 1863^^a date long antecedent to the dates at which a large proportion of the alleged losses and expenses are stated to have been incurred. In calculating the losses themselves, which is a separate branch of the question, the American Government appears to have presented, without discrimination, all claims which any persons, alleging them^ selves to have been interested in captured ships or cargoes, have thought proper to make. Claims are also presented for public property of the United States, captured or destroyed by some of the confederate cruisers, and, further, for expenditure stated to have been incurred in the " pur- suit" of these cruisers. The claims presented under these three heads have been referred for examination to departments of Her Majesty's government conversant with the classes of matters to which the claims relate; and the results of this examination are embodied in two reports, to which Her Majesty's government requests the attention of the arbitrators.^ The object of ' These reports will be found in vol. vii of the Appendix to the Case of Great Britain- COUNTEE CASE OF GREAT BRITAIN. 383 the examination, has been to discover how far, on the data furnished by the United States themselves, the estimate of losses alleged to have been sustained, and of expenditure alleged to have been incurred, could be regarded as reasonable estimates, prima facie, of losses actually sus- tained, and of an expenditure which could, on any hypothesis, be held chargeable upon Great Britain. Whether, on the facts proved before the arbitrators. Great Britain ought to be charged with any, and [134] what part of the losses sustained, is of course a *distinct ques- tion ; and it is again a distinct question whether, upon any sound principle, she ought to be charged with any, and what part, of the al- leged expenditure. CLAIMS FOR PRIVATE LOSSES. A reference to the first of these reports (that from the committee appointed by the board of trade) will convince the arbitrators that no reliance can be placed on the estimate presented of alleged ci.im. for privat. private losses, and that were the tribunal to hold Great '°»""- Britain liable in respect of any one or more of the enumerated cruisers, and to decide on awarding a gross sum for compensation, these esti- mates could not safely be accepted as furnishing even a frima facie basis for the computation of such a gross sum. These claims include — 1. Claims for the value of ships, freighted with cargo, destroyed by confederate cruisers ; for the consequent loss of freight, and for the value of the cargo. 2. Claims for vessels in ballast. 3. Claims by owners of whaling and fishing vessels destroyed ; for the value of the vessels themselves ; for the oil and fish which were on board of them, and also for the gross earnings which it is supposed they might have realized if their voyages had not been interrupted by captiire ; in other words, for prospective and speculative earnings. 4 Claims by American insurance companies in respect of insurances' on ships, cargoes, freights, and profits, which are alleged to have been lost or destroyed by the capture of the vessels. 5. Claims for masters' wages, for personal effects taken or destroyed, and personal damages. Gn; the claims presented under the first head the following observa- tions, among others, are made in the report : It will at once be admitted, by those who are at all familiar with the practice of tlie- courts in maritime cases, that it is impossible to place much reliance on the opinion or I evidence of ship-owners or merchants as to the value of property which they are seeking' to recover. Ship-owners are in the habit of founding their estimate, not on what would b&- the marfeet-price of the vessel at the time of her loss, but on the original cost-price, and often take into account the amounts which they have expended at different times with out making any proper deduction for the wear and tear and damage which has been sustained. Merchants are inclined to estimate the value of their goods by the profits which they had'hoped to realize, without making any allowance for the risk of the market-pride falling or other contingencies on which those profits so often depend. A strikingillustration of the truth of these remarks may be found in the case of the British vessel which was sunk in the river Seine in the course of the military opera- tions conducted by the German armies in the recent war with France. The owners presented a claim for £20,270 ; but when this claim, which was intrusted for investi- gation by the German government to Her Majesty's government, was sifted and exam- ined by the board of trade, it was found, in accordance with the very able report of the learned registrar of the court of admiralty, that the owners were not entitled to any larger amount than £6,899. There is, to say the least, no reason to suppose that the statements made by the claimants in the present case as to the values of the vessels, their freights, earnings, and cargoes, are more trustworthy thau such statements are generally found to be when 384 TREATY OF WASHINGTON. properly tPsted and examined. We find, for instance, as we have already stated, ship- owners putting forward claims for full ^peights and earnings, without making any de- ductions whatsoever, so that they are, in effect, demandingprofits at a rate exceeding aOO per cent., and sometimes exceeding 2,000 per cent., per annum. We find in that class" of claims which we noticed in the first place, and which are the most important as regards amount, the owners of whaling-vessels demanding the whole value of their ships and outfits, although they have received more than $700,000 from insurance com- panies, who at the same time, and in addition, put forward a claim for the same- amount. We find the charterer claiming for the loss of the charter-party, or his profit thereon, while the ship-owner demands the freight in full ; and finally, we find mer- chants claiming profits on their goods at the rate of 30 and 40, and even 50, per cent, per annum, without making any allowance for freight and for charges payable at the port of destination. Under these circumstances we think it right to express, most emphatically, our dissent from the assertion made in page 471 in the sixth part of the American Case, " that the statement shows all the facts necessary to enable the tribunal to reach a conclusion as to the amount of injury committed by the cruisers." On the contrary, that this assertion was not in any degree warranted will appear from the two following radical defects in the statement : In the first place, as regards the ships, neither their age nor their class is given, and in some cases not even their tonnage ; as regards the cargoes, in no instance do the claims specify the quantity either in meas- urement or weight, and in the cases of ships loaded with general cargo the quality or description of the goods is not even mentioned or indicated. In the second place, the statement is framed, to say the least, in so imperfect a manner that, in the majority of cases, it is impossible to ascertain even what is the value given by the claimants them- selves to their own property.' [135] * Under the second head very large sums are claimed as gross ' freights for vessels which had no cargo on board, which might*' never have been loaded with cargo, and which could not have earned these freights without very heavy expenditure and considerable wear | and tear, consumption of stores, and depreciation of ship and putfitf freights also, which would not have been received, if at all, until after the lapse, in each case, of a very long period subsequent to the date of,, the capture. On claims under the third head it is observed : The whaling and fishing voyages for which these vessels, vessels generally of small tonnage, are equipped, provisioned, and outfitted, extend over long periods, rarely of less than three or four years, so that the outfit and stores with which they are origi- nally provided are of proportionately great value ; in fact, in the great majority of eases, of much greater value than the vessels themselves. In the course of these voy- ages the vessels put into port from time to time, and disbursements are made by the masters, who draw for this purpose upon their owners, and the master and crew, in lieu of wages, generally receive a share of the vessel's earnings. At the end of the j voyages the vessels are necessarily very considerably deteriorated by wear and tear, their stores are almost entirely consumed, and the greater part of their apparel and outfit rendered completely unserviceable and worthless. This being the general ' character of these whaling and fishing adventures, it is diifienlt to conceive a, ca.'se in which damages can be of a more speculative or contingent character than those which are claimed tor the loss of the gross earnings which the owners might be expected to have realized at the termination of these long voyages, which were prematurely put an end to by the capture of the vessels. In the first place, the realization of the earn- ings and the estimate of their amount in this most hazardous and speculative of trades must necessarily be in the highest degree uncertain and problematical. In the secohd place, even if it were practicable to estimate the probable amount of these prospective earnings, a claim for that amount would be entirely illusory, unless enormous deduq-, tions were made, which again are difficult to estimate in any one particular case with any reasonable degree of certainty, such as deductions forthe very considerable wear and tear of the vessels, the very great consumption of stores, and the destruction of by far the greater part of the outfit, which mnst necessarily have taken place before the full earnings could have been realized. It is therefore manifest that in the damages for which compensation is demanded in the claims now under consideration there exist all those elements of uncertainty, remoteness, and difiSculity which would undoubtedly lead the courts, both in America and in England, to reject the claim altogether, in accordance with the principles laid down in the judgments which have been already cited or referred to.* ' Appendix to British Case, vol. vii, p. 11. 2 The English case of the Columbus, 2 W. Robinson, 158 ; the American cases of the Xively, 1 Gallison, 315; the Amiable Nancy, 3 Wheaton, 346; the Amistad de Kues, 5 Wheaton, 345. COUNTEE CASE OF GREAT BEITAIN. 385 The mode, moreover, ill wWoli this claim for prospective earnings had been preferred leaves one without the slightest data for estimating in any one individual case the compensation which could, with any propriety, be claimed for these contingent profits. The total claim in respect of the whaling and fishing vessels amounts to about' $8,500,000, about half of which is demanded for the loss of prospective earnings, with- out any deduction whatever. The claim is, therefore, from the very nature of the case, for reasons already stated, perfectly illusory, and we are scarcely surprised to find that this enormous claim for prospective earnings, which is really double the value ascribed by the claimants themselves to the ships and outfl.ts, can be proved, as will be ■ shown hereafter, to be equivalent to claiming, over and above the whole capital invested in those speculative adventures, a profit on such capital at a rate exceeding 300 per cent, per annum.' On the fourtli head it is observed : The American insurance companies, who have paid the owners as for a total loss, are, in our opinion, entitled to be subrogated to the rights of the latter, according to the well-known principle that an underwriter who has paid as for a total loss acquires the rights of the assured in respect of the subject-matter of insurance. This principle was explained and acted on in the well-known English cases of Randall ?>«. Cochran, 1 Ves. Sen., 98, and the Quebec Fire Insurance Company vs. Saint Louis, 7 Moore, P. C, 286, and is well recognized by the courts of America. On the other hand, it is equally clear that the underwriters cannot be entitled to anything more than the assured themselves ; for the claim of the fornler is founded on nothing else than their title to be subrogated to the rights which the latter possessed, and which, therefore, cannot possibly be more extensive than the claim which the latter would be entitled to main- tain. From these considerations two consequences follow : In the first place, where the claimant is the insurance company and not the owner, compensation cannot be due for any sum exceeding the amount of the actual loss sustained by the owner, however much that sum may fall short of the amount paid by the company by reason of the property having been over-insured. In the second place, wherever the owner puts for- ward a claim for his loss at the same time that the insurance company also claims the money paid by them in respect of the same loss, such a double claim must at on ce be ahsolutely rejected, since to allow it would be in effect to sanction the payment of the loss twice over.^ ■ This double claim is, however, made in a great number of cases. Thus, as to the whaling and fishing vessels, it is remarked : [136] *The sums claimed by insurance companies in respect of the vessels we are now dealing with, as well as in respect of their secured and prospective earn- ings, amount to the sum of $902,832. On examining the list of claims it will be seen that there are five cases, namely, those of the Alert, page 3 of the printed list ; the Covington, page 184 ; the Catherine, page 181 ; the General William, page 192 ; and the Gipsey, page 192, in which the owners give credit for moneys they have received from, their underwriters ; but we believe it will also be found mat these are the only cases in which that course' has been adopted. In all the other cases the owners claim from Great Britain the total value of the ships and outfits, as well as their secured and prospective earnings, withont deducting any sums received by them from the insurance companies ; while at the same time the insurance companies also put forward their claims to those very same sums. It may be somewhat interesting to note the mode in which this double claim arises. The enumeration of the different items constituting a claim in respect of any one captured vessel is preceded by the statement of the total sum claimed ; then in most instances the different items are set out, consisting simply of the alleged values of the. property or earnings lost, and these are followed by the claims made on behalf of in- surance companies for the amounts paid by them to the owners in respect of the same property and earnings. With the exception of the five memorable cases just men- tioned, the total claim is always formed by adding the first class of items to the second class, without making any deduction. In many cases this is done without any com- ment or notice whatsoever ; in others, and especially in those relating to the Shenan- doah, the owners frankly state that " they claim the full value of their property, irre- spective of the partial insurance received;" or boldly "protest against any diminution of their claim by reason of insurance." It follows, therefore, for reasons which have been ajready explained, that the sum of $774,183 obtained by deducting from the total amount of insurances the sum of $128,649, being the amount of the insurances in the five exceptional cases, represents losses which are, in effect, claimed twice over ; 1 Appendix to British Case, vol. vii, p. 7. s Ibid., p. 5. 25 A— II 386 TREATY OF WASHINGTON. and this simple cousideration enatiles us, without hesitation or difficulty, to strike off uno ictu this sum of $774,183, or all hut 10 per cent, of the total claim.' ~ As to claims for masters' wages, the report observes : A claim for loss of wages by the master has, we believe, never been allowed in the English or American courts in cases of collision or capture, or other similar cases. In the second place, if such a claim were not inadmissible, it would be necessary to take into account the fact that the master probably obtained other employment, and thereby earned other wages after the capture of his vessel, as well as the fact that when he contracted with his owners the risk of the vessel being captured was probably takea into account in fixing the wages. Finally, it must be observed that the claim of the master for loss of wages when advanced at the same time, as it invariably is iu the present case, with a claim by the ship-owner for full freight, is not less unjust than the claim by the owner for the amount of his loss when followed immediately by the claim of the insurance company for the very same amount ; for it is out of the gross freight that the wages would have been paid, and without such payment the gross freight could not have been earned.^ It must be added that the claims for personal effects appear ia many instances to be plainly exorbitant, and that claims are also made for personal losses of a remote and indirect kind, such as would, never be allowed in the courts of any country. Thus heavy damages are claimed by one man for the loss of a valuable situation, and by another for the loss of an appointment as consul, which he alleges himself to have sus- tained by detention on board the captured vessel. The general result of this examination as to the private losses is to re- duce the estimated amount of the claims on account of the Alabamafrom $6,537,611 to $3,288,851 ; of the Florida, from $3,693,302 to $2,035,568; of the Shenandoah, from $6,366,894 to $1,377,316; and the total amount claimed from $17,763,910 to $8,039,685; and this is believed to be a liberal, as it is certainly a careful, estimate.^ Whether any parti of this latter sum — and, if any, how much — might with justice be charged against Great Britain, is, as the arbitrators have been reminded., an en^ tirely distinct question, depending on the decision of the arbitrators as to the existence and the extent of any liability on the part of Great Britain in respect of the several vessels to whose acts respectively the different constituent parts of this aggregate loss are to be ascribed. Her Majesty's government supposes that the Government of the United States has deemed it proper to accept and present to the arbitrators the amounts at which the several private claimants have stated their own losses as suflBcient for the immediate purpose of the present pro- ceeding. But the arbitrators must be well aware that claims of this nature, piit forward by private persons, cannot safely be accepted, even as furnishing materials idr prima facie estimate, without strict scrutiny, and it is clear that this remark applies very forcibly to the claims now under cousideration. [137] *CLAIMg FOR NATIONAL LOSSES BY THE DESTRUCTION OF PUBLIC PROPERTY OF THE UNITED STATES. The claims for public property of the United States destroyed by oiaim,, or national coufcdcrate crulscrs relate to the war-steamer Hatteras, '.t*c"tio'/„rpubiic ^""'^ ^" action by the Alabama; to the barks Greenland SS'statel ""' ^°*^ Whistling Wind, said to have been laden with coal, and destroyed respectively by the Florida and a confederate vessel called the Coquette; and to the steam revenue-cutter Caleb — 1 —^ 1 Appendix to British Case, vol. vii, p. 16. ^ Ibid., p. 1.3. 3 Ibid., p. 36. COUNTEE CASE OF GEE AX BEITAIN. 387 Cashing, cut out and destroyed by the Archer, which is alleged to have been acting as a tender to the Florida. The Hatteras was detached from Commodore Bell's squadron, then blockading Galveston, to chase the Alabama, which had appeared in the offing. The destruction of this ship appears to have been clearly due to the failure of the squadron to support her ; and Her Majesty's government conceives that the claim on account of her is, on this ground, inadmissible, supposing that it could be supported on other grounds. The case of the Caleb Cushing betrays such remissness on the part of those intrusted with the charge and defense of the great fortified harbor of Portland (where this revenue-cutter lay) in aillowing her to be cut out under the very guns of the fort by the boats of an armed vessel which had been a small fishing-schooner, that, even should the tribunal hold that Great Britain has incurred any liability to the United States for captures made by tenders of the Florida, this claim ought not to be entertained. As to the Whistling Wind, it must be observed that the Coquette, by which she is said to have been captured, is not mentioned in the Case of the United States as a tender to the Florida, and there is no evidence, so far as Her Majesty's government is aware, that she was such. CLAIMS FOE EXPENDITURE ALLEGED TO HAVE BEEN INCURRED IN THE PURSUIT OP CONFEDERATE CRUISERS. In the second of the two reports above referred to, (that from the committee appointed by the board of admiralty,) the arbi- trators will find an examination of the claims presented on itura'afil/ed w1f°ve this account. It is obviously impossible, without any mate- pur°uirorcon'feaer° rials whatever for verification or comparison, to ascertain whether the several items for coal, outfit, expenses of navigation, and the like, do or do not correctly represent the actual expenditure under these various heads. Her Majesty's government deems it necessary to - point out that these accounts contain many obvious errors,^ many dis- crepancies, which there are no means of reconciling, and a great num- ber of charges which, in the absence of explanation, cannot but be deemed excessive.^ It must be further observed, however, that these claims for expend- iture include not only vessels stated to have been employed in seeking for the several cruisers specified in the United States Case, including the Sumter and the Tallahassee, (which were fitted out in confederate ports,) but also others dispatched after the Eappahannock, (which is not among the specified vessels, and on account of which the case malies no claim,) and the Chesapeake, (which is not even mentioned in the Case,) and others again, which were employed in the general duties ' For example, the whole amount of the Sheppard Knapp's outfit is charged, although in the ofacial account of her loss in the report of the Secretary of the United States Navy to Congress of the 7th December, 1863, p. 556, it is stated that "her hattery (11 guns) and appolntmeuta, ordnance, yeoman's and master's stores, instruments and charts, provisions and clothing, spars, sails, running and standing rigging, anchors and chains, everythiug portable and of value to the Government, has been saved. The only loss is the hull and the use of the ship."— (Appendix to British Case, vol. vii, p. 90.) 'For example, the charges under the head of medicine and surgery amount to $28,664.24. The medical director-general of Her Majesty's navy states that £2,500 would probably cover the.charge for medicines and medical stores for 7,600 men for 303 days in Her Majesty's navy.. And this appears to have been the total of the com- plements of the United States cruisers. — (Ibid., p. 93.) 388 TREATY OV WASHINGTON. incidental to a state of war, such as convoy, the protection of fisheries, intercepting blockade-runner's and ships laden with contraband of war, and cruising in search of enemj^'s privateers generally. Sailing orders, in which this general description is employed, cannot be treated as hav- ing reference to any of the specified vessels ; and in several instances the dates conclusively prove that there could have been no such refer- ence. Again, the claim for expend) ftire in respect of a United States cruiser dispatched in pursuit of a particular confederate ship is some- times prolonged considerably beyond the date when the capture or de- struction of that ship must have become known to the commander of the cruiser, and during a time, therefore, when he must have been em- ployed on other service. There are cases again (such as that of the De Soto') in which it is clear that a cruiser alleged to have been in [138] quest of a confederate ship must *have much more than paid her expenses by the prizes made by her while nominally employed on that errand. The result of a careful and, as Her Majesty's government believe, a fair and just examination of these claims, upon the data presented by the United States themselves, is that, even were it possible to hold Great Britain liable for all expenditure incurred in the " pursuit" of all the confederate vessels specified in the United States case, the amount could not exceed $1,854,715.99; were the expenditure limited to the Florida, Alabama, Georgia, and Shenandoah, it could not exceed $1,509,300.74; were it limited to the Alabama, it could not exceed $1,427,685.03 ; and these figures would require considerable abatement. The amount claimed by the United States on this score is $7,080,478.70.^ It is needless to remind the arbitrators that claims of this nature are subject to the same observation as has been made with respect to the claims for private losses. It would be plainly unreasonable to contend that, if any failure of duty could be established against Great BritaiE in respect of a given vessel, all that may have been expended by the United States in trying to capture her must be assumed to be charge.? able against this country. But the British government takes exception to this class of claims altogether. It cannot be admitted that they are properly to be taken into account by the arbitrators, or that Great Britain can fairly be charged at once with the losses which a belliger' ent cruiser has inflicted during her whole career, and with what the United States may think fit to allege that they spent in vainly endeav- oring to capture that cruiser. Such demands are unheard of, and were never before suggested, even in those cases in which the attempt has been made to obtain compensation for actual losses. By what test, it may reasonably be asked, would it be possible to try the propriety of such an alleged expenditure ? How are the arbitrators to j udge whether the ships said to have been employed were properly selected for the purpose, sent to the proper places, and furnished with proper instruc- tions, and whether those instructions were executed with activity and judgment '! On these things, however, among others, the propriety of the expenditure "depends. In truth, there is but one test possible ; it is that of success within a reasonable time. Tried by this test, the claim must fail, even if it were open to no other objections. Her Majesty's government is naturally reluctant to criticise the man- agement of the United States Navy, and desires to say as little as pos- sible on this point. But a few briet remarks on it are made necessary by the clainis of the United States, and it is difficult to resist the con- 1 Appendix to Britisli Case, vol. vii, p. 74. 2 Ibid., vol. vii, pp. 63, 111. COUNTER CASE OF GEEAT BEITAIN. 389 viction that, if well-appointed vessels of compeDent speed and strength had been dispatched in the directions which knowledge and experience would indicate, and if favorable opportunities had not been lost or thrown away, the list of captures by confederate cruisers would have been comparatively small. Let us take, as the earliest example, the escape of the Sumter from the Mississippi. This is described by the Secretary of the Kavy in his report to Congress, dated the 1st December, 1861, p. 8 : Such of these (the oonfedenate) cruisers as eluded the blockade and capture were soon wrecked, beached, or sunk, with the exception of one, the steamer Sumter, which, by some fatality, was permitted to pass the Brooklyn, then blockading one of the passes of the Mississippi, and, after a brief and feeble chase by the latter, was allowed to pro- ceed on her piratical voyage. An investigation of this whole occurrence was ordered by the Department. With regard to the Alabama, it has been seen that the Tuscarora, being in the United Kingdom at the time the former surreptitiously left Liverpool, failed to follow and intercept her. This appeared to the United States minister in London to show a want of that promptitude and judgment which ought to have been evinced under the circum- stances, and he evidently believed it probable that the Tuscarora Would have succeeded in intercepting her, had the needful activity and dis- patch been used. Again, she was blockaded in the harbor of Port Eoyal, Martinique, on the 19th November, 1862, and although private signals from a ship in the harbor were made to the United. States steamer San Jacinto, then off the entrance, the Alabama, on the same evening, escaped the vigi- lance of the San Jacinto. ' Again, she was off Galveston on the 11th January, 1863, and was seen by the ships of Commodore Bell's squadron ; and the flashes of the guns, while the engagement between her and the United States ship of war Hatteras was taking place, were plainly visible, and the sound of the guns heard. At 7.30 p. m. the Brooklyn, the commodore's flag-ship, went in pursuit, steering S. J E. in the direction of the flashes. [139] The Sciota was *sent out S. S. B. and the Cayuga S. S. W., but these vessels failed even to see the Alabama. The commodore, in his offloial dispatch of the 12th January, 1863, (p. 319 of the United States Secretary of the Navy's report to Congress,) states that " three or four vessels like the Oneida thrown into the Yucatan Channel imme- diately would probably intercept him. The gun-boats are not a match for him in force or speed." Had, therefore, the Brooklyn and her con- sorts followed up the pursuit until the following morning, it is probable the Alabama would have been in sight, and, if so, she might have been captured. Captain Semmes, in his account of his voyage, makes the following observation : " By their account of the course steered, they could not have failed to have seen us." Again, the Secretary of the Navy, in his report to Congress, dated 7th December, 1863, p. 23, pronounces the following censure on the improper employment of the Vanderbilt: In derogation of these special and explicit orders. Acting Eear-Admiral Wilkes, on falling in with the Vanderbilt, transferred his flag to that vessel, and, attaching her to his squadron, detained her in his possession so long as to defeat the object and purpose of the Department. He did not release her until the 13th June, when Commander Baldwin proceeded to carry out his instructions, but he was too late. He arrived at Fernando Noronha on the 4th ,of July, at Pernambnoo on the 6th, at Rio de Janeiro on the 14th ; thence he proceeded, on the 2d August, to St. Helena, instead of going direot to the Cape of Good Bope. The unfortunate detention of the Vanderbilt wholly defeated the plans of the Department for the capture of the Alabama, Florida, and Georgia. They, as the Department anticipated, arrived in those latitudes and visited those ports 390 TEEATY OF AVASHINGTON. in May, but the Vauderbilt, instead of being thereto receive them, as the Department intended, was improperly detained in the West Indies until after that period. The Florida, after having been seized and tried at the admiralty court of Nassau and subsequently released, proceeded to the Gulf of Mexico, and in the middle of the day of the 4th September, 1862, boldly passed through the blockading squadron off Mobile, and ran safely into the harbor.i For this act of remissness on the part of the commanding officer of the United States blockading squadron he was dismissed from the United States ISTavy. She remained specially blockaded until January, 1863, when she ttgain succeeded in running through the blockading squadron. She passed close to several of the ships, but was not stopped; and one of the fastest, which was specially charged with the duty of watching and following her, is stated never even to have slipped anchor in chase. Under such circumstances, when on two separate occasions she might have been captured, (either on the 4th September, 1862, or 15th Janu- ary, 1863,) but escaped unscathed by the ships of war specially block- ading her from ingress as well as egress. Her Majesty's government is unable to understand on what principle any claim can be sustained for losses occasioned by this ship, which up to this date (the 15th January, 1863) had not captured a single vessel of the United States, still less for the expenses incurred in failing to capture her. In the course of her subsequent proceedings the Florida arrived at Brest on the 23d of August, 1863 ; remained there refitting and repair- ing until February, 1864, during which period she was taken into a government dock, and made considerable changes in her crew. On the 17th of September the United States ship of war Kearsarge arrived ii( Brest Roads, and remained at anchor with her fires banked until the 30th October. She again returned on the 27th November, on the 11th and 27th December, and the 3d January, 1864, no doubt with the expres;s object of watching the Florida, which was at anchor in the roadstead, nearly, if not quite ready for sea ; and the confederate cruiser eventu- ally sailed from Brest in charge of a pilot on the evening of the 9th February. The Kearsarge, however, had disappeared from the coast, and had not been seen since the evening of the 3d of January ; but she again returned on the 18th February, when, as it was to be expected, the Florida had disappeared from the anchorage. Her Majesty's government have been unable to discover that any ships of war of the United States were ever specially sent in pursuit of the G-eorgia or Shenandoah ; although in the remarks of the Secretary of the United States Navy in his report to Congress, above quoted, the Georgia is named with the Alabama and Florida. Those three vessels were, it appears, known to the United States Naval Department to be somewhere on the equator or on the coast of Brazil ; and there, had a flying squadron been at once sent in pursuit, one or more of them, if not all, would probably have been captured. It is to be remarked that, during the whole time the Alabama was at sea, she was only met on two occasions by ships of the United States Navy, until she voluntarily engaged and was sunk by the Kearsarge, off Cherbourg, on the [140] 19th June, 1864. On the first *occasion she escaped from Port Royal, Martinique, when virtually blockaded by the San Jacinto in November, 1862 ; on the second, she engaged and sunk the Hatteras, off Galveston, on the 11th January, 1863. Nor does it appear that either ■ 'Appendix to the Case of the United States, vol. vi, p. 332. COUNTEE CASE OP GREAT BRITAIN. 391 the Georgia or Shenandoah, daring their respective cruises, ever fell in with a ship of war of the United States. Her Majesty's government cannot but observe that, among the United States ships for which claims are made, as having been employed in the pursuit of confederate cruisers, there are several which would have been worse than useless for such a purpose. If the Onward, of 874 tons, or Ino, of 895 ton^, converted merchant- vessels without steam-power, which are represented as having been sent in search of the Alabama, had fallen in with that ship, they must inevitably have been destroyed. The same observation applies to other sailing-vessels of the same class, such as the Gemsbok, National Guard, and Sheppard Knapp, and still more strongly to the George Mangham, a mortar (sailing) schooner of 274 tons.i With thp large naval force at the disposal of the Government of the United States, Her Majesty's government cannot forbear to observe that it appears extraordinary that more energy was not displayed in pursu- ing and following up the few small confederate cruisers to which the claims against Great Britain relate. The losses now complained of would have been reduced to a minimum had effective tneasures been used to protect the commerce of the United States by the establishment of one or more flying squadrons, with orders to follow them anywhere and everywhere, and not confined, as Admiral Wilkes's flying squadron was, to a very restricted station. It is clear, indeed, from the report of the Secretary of the Navy, quoted above, that he was himself conscious that the utmost efforts of the United States were not put forth to pursue and capture these confed- erate vessels; This duty was deliberately held to be subordinate to that of maintaining the blockade : In addition to the few vessels stationed abroad to guard our national interests, others have from time to time been dispatched in pursuit of the rovers, all of which were built in and have gone abroad from foreign ports to prey upon our commerce. The details of all the measures which have been adopted by the Department in this view it is not necessary here to disclose; but with most of our naval vessels engaged in enforcing the blockade, and without a clew to guide our independent cruisers on the trackless, ocean, they have thus far been unable to encounter these semi-piratical ves- sels, which always seek to evade a naval antagonist. Were the probabilities greater than they are, however, of encountering them, and were our public naval vessels per- mitted to enter the ports of the maritime powers for fuel and other supplies when iu pursuit, it would not promote the interests of commerce nor the welfare of the country to relax the blockade for that object. The foregoing observations have, it will be observed, a material bear- ing not only on the claims for national expenditure, but on all the claims for compensation which are advanced by the United States. It would be unjust to hold that a neutral nation is 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 bellig- erent would have, by the use of due diligence and proper means on his own part, the opportunity of counteracting the mischief. CLAIM OF THE UNITED STATES FOR INTEREST. On the claim for interest which is advanced by the United States, Her 'Appendix to British Case, vol. vii, p. 58. 392 TREATY OF WASHINGTON. ci,imorthe United Majcsty's governmeut must observe that it is, m principle, stat.es for .merest, uutcnable. The claims referred to the arbitrators are, it must not be forgotten, claims ©f the United States, not of private per- sons, against Great Britain, although a large proportion of them may represent losses alleged to have been sustained by private persons. Interest, on general principles recognized in, the jurisprudence of all countries, and founded on reason, can be claimed only.(in the absence of a specific agreement) where a debtor is in mora; that is, where de- fault has been made in payment of a liquidated debt at the time when it ought by law to have been paid, there being no mora accipiendi, [141] or delay interposed on the part of *the creditor. It is evident that these conditions do not apply to a case in which a mass of doubtful claims, of unascertained amount, have been made by one nation against another, have from time to time been the subject of negotiation, and are at length referred to arbitrators. It is through no fault of Her Majesty's government that these claim's were not submitted to arbitra- tion in 1867, or again in 1869 ; and it is not for the United States, which five years ago refused to agree to a reference, and three years ago refused to ratify a treaty actually concluded for this purpose by their represent- ative in England, to insist on a delay, of which they were themselves the cause, as a ground for increasing their demands upon Great Britain. EBCAPITULATION OF PRECEDING EEMAEKS ON THE MEASURE OF COMPENSATION. To recapitulate what has been said on this branch of the subject: The losses which may be taken into account by the arbitrators are at Rerapituiation of thc utmost thosc only which have directly arisen from the f^rSiiTo"™™. capture or destruction, by one or more of the cruisers enu- pensation. mcratcd in the Case, of ships or property owned by the United States or by citizens of the United States, and the extent of the liability of Great Britain for any such losses cannot exceed that propor- tion 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. It is the duty of the arbitrators, in deciding whether claims for com-" pensation 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. 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. The claims for interest are not admissible. Should the tribunal award a sum in gross, this sum ought to be meas- ured 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. The estimates of losses, public and private, presented by the United States are so loose and unsatisfactory, and so plainly excessive in amount, that they cannot be accepted even as furnishing a prima facie basis of calculation. The estimates of expenditure (were the claims on COUNTER CASE OF GREAT BRITAIN. 393 tliat head to be considered admissible) would likewise be found too unsatisfactory to serve a like purpose. Her Majesty's government is sensible that, should the arbitrators find it' necessary to approach this question, they will probably find it one of no inconsiderable difficulty. The foregoing considerations are intended to circumscribe it, at least, within just and reasonable limits, and, sub- ject to these considerations, the British government leaves it to the impartial judgment of the tribunal. In concluding this Counter Case Her Britannic Majesty's government thinks it right to advert, in a few words, to considerations which invest this controversy with an importance not, perhaps, so great as is ascribed to it in the Case of the United States, but sufficient to make it a matter of profound general interest. The discussion turns on the duties and responsibilities of neutrals ; and the field of discussion embraces ques- tions of principle, questions of fact, and questions of peculiar moment respecting the application of principles to ^ facts. The United States have asked the sanction of the arbitrators to conceptions of neutral duty, and still more of neutral liabilities, which, to the British govern- ment, appear to be fraught with grave consequences, and to demand serious attention. These views, theoretically stated in an earlier part of the American Case, are embodied in a practical shape by the charges advanced against Great Britain ; and they assume a still more formida- ble aspect when they are invoked to support large claims for pecuniary reparation. For the first time in history, as the British government believes, it has been seriously insisted that every act or omission, how- ever doubtful or insignificant, on the part of a neutral government or its officers, which could be construed by a belligerent into a deviation from the line traced out for neutrals by international law and practice, may be made the foundation for pecuniary demands upon the neutral power, such as are now urged against Great Britain. If this be [142] so, it becomes a matter of the highest moment that the rules binding on neutrals should be simple and few. But what, accord- ing to the Case of the United States, must be the ordinary situation of a neutral in a maritime war? It must be a situation of perpetual and un- remitting anxiety, surrounded by dangers, harassed by a crowd of new obligations unknown in peace, which nothing short of sleepless vigi- - lance will satisfy, while any lapse in the performance of them, on the part even of a subordinate officer, is to be visited with heavy national penalties. The transactions of private commerce must be made the object of minute inquisition and incessant supervision; private persons, suspected of being agents of either belligerent, must be tracked, when within the neutral country, by spies and informers ; trade with the bel- ligerent nations must be fettered by restraints arid prohibitions ; the hospitalities ordinarily extended to belligerent ships, in ports of the neutral must be guarded with precautions, for the strict enforcement of which no honesty or zeal on the part of the local authorities can afford an adequate guarantee. Laws and regulations enacted by the neutral nation with a view to its own protection, far from being a means of security, become an additional source of danger, when they are liable .}to be construed as acts by which the neutral establishes as against him- self, by admission or otherwise, a new class of internatioual obligations. = Is this picture overdrawn I It can hardly be thought so, when we pass in review the various articles of the long indictment preferred by the 394 TKEATY OF WASHINGTON. United States against Great Britain, and the statements and arguments which have been used in support of them. It Is evident that, if these principles were to be generally adopted, the only prudent coarse for neutral powers woald be to enact no regu- lations, repeal all laws which could be interpreted as admissions against themselves, exclude all belligerent vessels of war from their ports, pro- hibit all traffic with belligerent nations. But even this would not be enough, since it is difficult, perhaps impossible, for maritime states, by any legislative or administrative precautions; to isolate themselves and their subjects completely from all contact with a maritime war. States, especially the less powerful, would be tempted to abandon a position so precarious, and menaced by such heavy penalties ; to choose, in prefer- ence, the certain evils of war itself; and to seek protection in an alliance with one belligerent or the other. The British government is convinced that the arbitrators will not give any sanction to views of neutral obligation, to which not even the authority of this tribunal could secure the general assent of neutral powers. ' ISTay, the British government is persuaded that these extreme views, though, for the sake of argument, they have been insisted on in the Caseo f the United States, are not thoroughly realized, and would never, in practice, be accepted as binding by the United States them- selves. The conceptions of neutral duty which have been stated to the arbi- trators on the part of Great Britain are those on which she has con- stantly acted, and is prepared to act in future, and which she believes to be upheld by reason, by authority, and by the general consent of nations. It is the right of a state which remains at peace while others are at war, that its relations with foreign countries and the duties it owes to them as a member of the society of nations, should, as far as is possible, continue to subsist unaltered by discords from which it stands aloof, and wherein it has no share. Impartiality in act ; the exercise ol reasonable care to prevent itself from being made, even against its will, a virtual participant in the war, while claiming the advantages and im- munities of peace ; this is all that the neutral is bound to give, or the belligerent entitled %o require. Great Britain has laid before the arbi- trators, with a fullness and minuteness of detail rendered necessary by the long train of accusations she has had to meet, the acts of her gov- ernment and of its officers, and every ascertained fact and circumstance which can be material to a decision ; and she leaves with confidence to their judgment, and to that of the world, the question whether her obli- gations as a neutral were not fairly discharged toward the United States during the civil war. Finally, Her Britannic Majesty's government desires to express its earnest hope, in which it is assured that the Government of the United States will cordially share, that the frank and open statement of facts as they actually occurred, may effectually remove every misunderstand- ing between nations allied by innumerable ties to one another. [143] *A N N E X (A.-) mn ON THE QUESTION REFERRED TO AT PAGE 12. The subjoined citations bearing on the question referred to in page 12 are taken, as will be seen, with few exceptions, from works published before the question in controversy arose : a^-!,bx(a.) Celui-lk au contraire blesse les devoirs de la neutrality qui, sans engagements ant^rienrs, permet h I'une des puissances bellig^rantes le passage ou la levcSe de recrues, en les defendant k I'autre, ou bie'n qui tolfere sur son territoire les pr6paratifs militaires de I'nne des puissances bellig^rantes en lui permettant d'occuper telle forteresse, en souffrant des rasserablements militaires, des arinements eu course, &o. ; et c'est en vain qu'il se parerait dupr^texte d'Stre prSt h en faire autant en faveur de la partie adverse. — {Martens, FrMs du droit des gens moderne de V Europe, Verge's edition, 1858, book viii, chap, vii.) El armar buques para el servicio de la guerra, aumentar sus fuerzas, aderezarlos, prepaiar expediciones hostiles, son actos ilegitimos en territorio neutral, y las oapturas subsiguientes & ellos se miran como viciosas en el foro de la potencia neutral ofeudida, que tiene derecho para restituir la presa ^ los primitivos propietarios, si ^ sus puertos fuere. conducida. » * » Nada se opone i que los beligerantes apresten naves de comercio eu los puertos neutrales, las tripulen y surtan de todo lo necesario ; lo cual se exliende ^las naves quepueden destinarse indistintamente al comercio <5 S la guerra. — {Pando, Elementos del derecho iniernadonal, § 192, Madrid, 1852.) Nach der dritten Eegel des vorigen Paragraphen darf der neutrale Staat einer krieg- flihrendeu Parte! weder Mannschafteu noch auch Schiife fiir ihre Kriegsunternehmun- gen zur Disposition stellen, auob keiue Waffenplatze oder Schiffsstationen fiir feindliobe Unternebmungen einriiumen, noch endlich Geldmittel zum Fortbetriebe des Krieges zufliessen lassen. Fiir erlaubt hielt man ehedem zwar die Vermiethung und gewisser- massen Seelenverkauferei von Truppen an einen kriegfiihrenden Theil, selbst ohne eln^n dem Kriege vorausgegaugeneu Vertrag ; theils machen jedocb die constitutio- nellen Rechte der Volker dergleichen heut zu Tage unmoglioh ; theils wird auch, wenn es noch vorkame, eine Kriegspartei durch kein Herkommen gehindert, einen solchen Truppenlieferanten nach ihrem politischen Interesse zu be handeln. Eben so war es eine vormials sehr gewohnliche Meinung, ein neutraler Staat diirfe einer kriegfiihrenden Macht gestatten, sein Gebiet fiir ihr Angriffs- und Vertheidigungssystem zum Sohaden des Gegners voriibergehend zu benutzen, falls man diesem selbst auch das Namliche zu erlauben bereit ware, z. B. einen Durchzug von Truppen oder die Durchftthrung von ScHffen durch das neutrale Wassergebiet, ferner die Anhaufung von Magazinen, Aus- riistung von Truppen, Kriegsschifteo und Capern ; allein es lassen sich dergleichen Vergiinstigungen mit dem Wesen stronger Neutralitat nicht vereinbaren. Denu es wird darin immer ein actueller Gewinn fur den Begiinstigten in seinen Unternehmungen liegen, und die Umstande werden selten so geartet sein, dass aus solchen Gestattungen kein wirkliches Prajudiz fiir die andere Parte! entstehen konnte ; meistens wird die Lage eines neutralen Landes fiir die eine Kriegspartei giinstiger sein als fiir die andere, demnach ihre Benutzung von Selten der einen wirkliche Forderung ihrer fernd- lichen Zwecke gegen die andere Partei. Nur bei volliger Unverfanglichkeit der Ver- haltnisse und Zustiinde wilrde daher der Neutrale Zugestaudnisse der angegebenen Art machen diirfeu ; unter alien Umstanden aber fordert es der gute Glaube und die Klugheifc", sich mit dem anderen Theile hieriiber zu verstiindigen. « » » Durch das Vorstehende sind mit Beriicksichtignng der wichtigsten Falle die engsten Grenzen gezogen, iunerhalb deren sich dieUnparteiliohkeit der neutralen Staatsgewal- ten halteu muss. Was nun diese zu thun nicht berechtigt sind, darf im Allgemeinen auch ihren TJnterthanen nicht gestattet werden. Inz wischen kann dadnroh die Freiheit der Einzelnen nicht so voUig beschrankt werden, als es fur die Staatsgewalt selbst, mithin auch fiir die Masse der Nation, Gesetz der Neutralitiit ist. Es kann daher keine Eegierung, den Fall ausdrucklioher Vertragsverbindlichkeit ausgenominen, dafiir. verantwortlich gemaoht werden, wenn einzelne ihrer Unterthauen Ixeiwillig in der einen oder anderen Weise an einem fremden Kriege Theil nehmeu, wenn sie sich mit 396 TEEATY OF WASHINGTON. einer Kriegspartei in Lieferungs- und Darlehngeschafte einlassen, oder in die Trup- penreiheu derselbeu eintreten, eiuem kriegerischeu Drange Oder besonderen morali- sohen Infceiessen an der Sache dieser Partei naohgehend. Im aussersten Falle wiirdeu hier nur die Grundsatze von der Auswanderung der Untertlianen zur Anwendung kommen. Sollte freilioh die TEeilnahme der Uuterthauen eine massenhafte werden, dadurch die Aufmerkeamkeit und Bedenklichkeit der Gegenpartei erregen, demnach Eepressalien derselben befiiroliten lassen : so wird es von dem politischen Ermesaen der betheiligteu Staatsgewalt abhiingen, ob und wie weit sie dagegen einsohreiteu ' wolle, jedooh nicht aus Pflioht gegeu den kriegfuhrenden Theil, sondern ledig- [144] lich aus 'Eiicksiolit auf das eigene Staatswoh). Als Verletzung der Neutrali- tatspflichc darf nach neuerem Brauoh die Erlaubniss zur Annahme von Caper- briefen und Ausriistuug von Capersoliififen angesehen werden.^-(£e^ter ; Das europaische FiilkeiTecht der Gegenwari, §i 147, 148, 3d edition, Berlin, 1855.) The foregoing passages relate to hostile expeditions organized within and dispatched from the neutral country. Heffter, where he speaks of the act of furnishing vessels constructed for war to a belligerent, intro- duces it under the head of contraband : Da sioh neutrale Staaten und deren Untertlianen durcli unmittelbare Gewiibrung einer Kriegshilfe ftir den einen Theil gegen den anderen einer Verletzung der Neatra- litat schuldig machen, so ist letzterer unstreitig berecbtigt, auf offenem Kriegsfelde dagegen einzuscbreiten und die unbefugten Haudlungen als feindselige zu ahuden. Hiernnter fallt mit Beistimmung der Praxis : a. Die freiwillige Zutlibrung von Mannschaften fur den Land- und Seekrieg ; t. Die freiwillige Zufiihrung von Kriegs- und Transportschiffen ; c. Die freiwillige Beforderung von Depesohen an oder filr einen Kriegfiihreuden. ■ '! ^ In Fallen dieser Art, wofern sie wirklich constatirt werden, wird nicht allein die Wegnahme, sondern auch die Aneignung des Transportmittela, ja sogar der iibrigen Ladung gegen den von dem verbotenen Zwecke der Eeise unterrichteten nentralen Eigeuthiimer zulassig gehalten, obwohl nicht immer mit gleicher Strenge gehandhabt. In der That liegt darin eine Selbsthilfe, welcher fjer Neutrale unterworfen werden darf, der sich zum Complicen oder geheimen Gehilfen des Feindes gemaoht hat. — (§ 157 t.) The foregoing passage has been extracted in the Case of the United States (p. 196) from a French translation of Heffter's work, in which it will be observed that a change of expression is introduced. The sub- stituted words are : h. La construction dans les ports neutres de vaisseaux de guerre on de commerce ponr le compte de I'ennemi, dis leur sortie. Heffter himself, in bis fifth edition, published in 1867, retains the words he had previously used, while he recasts the remainder of his paragrapbj entitling it "Analoge Falle der Kriegscontrabande," omitting the open- ing sentence, and merely stating that the three classes of acts specified fall under the head of contraband " improper," ("uueigentliche Kriegs- contrabande.") Heffter here couples the act of furnishing a vessel of war to a bellig- erent with that of furnishing him with a transport, and also with that of transporting troops for a belligerent from place to place. That these are not acts which the neutral government is under any obligation to prevent has been constantly held by the United States. The doctrine thus enunciated by Heffter is that of all previous writers of authority. Ships of war, exported from a neutral territory for the use of a bellig- erent, had always been ranked among articles contraband of war, with- out any indication of a difference, in the view of international law, be- tween them and other articles of direct use in war. In the treaty of December 21, 1661, between Charles II of England and Charles XI of Sweden, which is stated by Azuni {Si/steme universel, &c., torn, ii, art. iv, § 16, page 121, note) to have " servi de rfegle ^ un grand nombre d'autres post6rieures," it is provided, " Ne merces ull® vocatse contrabandss, et specialiter" (inter alia) " naves bellicm, etprwsi- diarice hostibus suppeditandse, devehantur ad alterius hostes sine peri- COUNTER CASE OF GREAT BRITAIN. 397 culo, si ab altero confsederatorum deprelaendantur, quod prsedse cedant absque spe restitutionis." In tbe convention of London (July 25, 1803) between Great Britain and Sweden, certain additions were made to the list of articles contra- ' band of war enumerated in the previous convention of 1801 between Great Britain and Eussia, among which additions were " ships of war." Eutherforth, in his " Institutes," 1756, chapter xix, (on contraband of war,) wrote : " When a w^ar is carried on by sea as well as by land, not only sKips of war which are already huilt, but the materials for building or repairing of ships, will come under the notion of warlike stores." Hiibner, (an author who has been referred to in the Case of the United States as having given the best definition of neutrality,) in enumerating the " cas ou les batimeuts neutres sont saisissables," ranged under this head vessels built in a neutral port to the order of a belligerent : " Quand ce sont des navires de guerre construits dans un port neutre pour le compte ou pour le service des parties bellig^rantes." {Saisie des bdtiments neutres, vol. i, chap, vi, § 5.) He classes this case with the transport of contraband and with breaches of blockade. Martens {Precis du droit des gens, &c., lib. 8, chap, vii, § 318) also enumerates, among contraband articles, ships of war. Galiani, (according to Azuni, vol* ii, art. v, " Be la contrehande de guerre," § 2, page 143 :) Aprfes avoir expose les diif^rentes doctrines des publicistes, en comineufaut depuis Grotius jusqtf a, Lampredi, sur I'indication qu'ils out donn^e des marchandises dites de contrebande, finit par dire qu'aprfes avoir montriS par les lumiferes da bon sens et de la raison uaturelle, quelles sont les justes bornes des classes de marchandises qu'on pent compter entre oelles de contrebande de guerre ; il ajoute en preuveque ce sont en effet, i peu de difference prfes, celles d^terminges par presque tons les trait^s de I'Europe. II compte ensuite les genres qui, universellement et de tout temps, ont 4t6 regardfe oomme Contrebande de guerre ; i! passe de la k ceux qui en ont toujours et6 exclus ; et, enfin, sa troisifeme classe comprend les genres sur lesquels la question est rest^e ind^cise. II range dans la premifere classe leshommes.les chevaux, les armes defensives et offensives de toute espfece, et les vaisseaux de guerre. Tetens [Considerations sur les droits reciproques, &c., 1805, sec. 3, Nos. 3 and 4, on contraband of war) enumerates ships of war among articles which are, according to his classification, contraband of the first order. Viaut&m&a,' (Delia giurisprudenzamaritima, 1806-'8, tom. iii, pp. 44, 48, 62, on prizes) among lawful captures enumerates that of neutral vessels, 'Hf armed for war." Professor Lampredi, of Pisa, has always been justly regarded with respect as a learned and impartial writer. The main argument of his work on neutral commerce, which he wrote chiefly in refutation of some criticisms of the Ahh6 Galiani on a former treatise, is to vindicate the general right of neutrals to carry on their trade, in time of war, in the same manner as during peace, provided they do so impartially. And he asserts this right, within the neutral territory itself, to be abso- lute. [1'45] *In part i, chap. 3, p. 32, (Peuchet's translation, Pans, 1802,) he says: Lorsqn'une fois I'on a etabli la seule loi que' les peuples neutres doivent obser- ver pendant, la guerre, il devient inutile de demander quelles doivent fetre les limites du commerce qu'ils font en consequence de leur neutralite , parce qu on pent repondrequ'iln'en doit avoir aucune, et qu'ils peu vent le faire de la mgme mauiere qn'ilsle faisaiemten temps de paix, observant seulement une exacte impartialite pen- dant tout le temps de la guerre. II n'y aura done aucune eapice de marchandises qu lis ne puissent vendre etporter aux bellig^rans, et Von ne pourrapas les empeoher de leur ver^re ou !dMer(fesMaw)-es,pourvu qu'ils ne refusent point a, I'un oe qu'ils accordent ^1 autre. Devant et pouvant suivre l^gitimement leur commerce comme en temps de paix, il ne doit y avoir aucune distinction de marchandises, d'argent, d'armes et d'autres mum- 398 TREATY OF WASHINGTOIf. tions de guerre ; la vente et le transport de ces divers olijets dans lea places des beUigg- rans doivent etre permis, et ne point porter atteinte a la neutrality, pourvu qn'il n'y ait ni faveur, ni pr^f^rence, ni esprit de parti. In chapter iv, page 46, lie says : Si d'ailleufs I'interdlctiou du commerce des olijets de contrebande ^tait nne loi naturelle de la neutralit(5, chacun voit que les peuples en paix qui font ce commerce pourraient 6tre regard^s comme ennemis, et que la guerre serait autoris^e contre eux ; ce qui n'est jamais arrive et ne se fait point nou plus de nd^tre tems ; preuve 6vidente que la violence faite k la liberty du commerce des neutres, en tems de guerre, a lieu et se tolfere respectivement des deux c6t^s, parce que I'on en est ainsi taoitement couTemi et uon parce que le droit naturel le prescrit ainsi. In chapter v, page 57, he treats the question whether neutrals may sell every kind of merchandise within the neutral territory to a belligerent, as one which no jurist anterior to Galiani had ever thought of bringing into controversy ; all their discussions being confined to the carriage of contraband to the enemy : II r^sulte de toutes les autorit^s que nous venons de rapporter, que la doctrine que nous exposons ii'a et6 niise en doute par personne, et qu'elle a 6t6 regardSe par tous les publicistes comme pacifique, et nuUeraent eontraire au devoir de la neutrality. N^anmoins I'AbbiS Galiani a trouv^ cette doctrine strange et fausse ; et demandant si un navire construit et arme en guerre dans un port veutre serait riput^ marchandise de contre- iande si on I'y mettait en vente, il dit qu'on devrait le regardw ainsi. Ensuite il nous attri- bue d'avoir les premiers fitabli que les neutres ne peuvent pas exporter des marchan^ dises de contrelaande 4, 1'euuemi, mais qu'ils peuvent les vendre surleur propre terri- toire &, ceiix qui se pr^sentent, pourvu que ce commerce soit fait avec impartiality, et sans moutrer plus de faveur h I'un qu'^ I'autre des bellig^rans. Nous ne pr^tendons pas nous attribuer ce qui ne nous appartienb pas. La doctrine que nous venous d'ex- poser, et qu'il appelle inou'ie, a 6t6 suivie, au moins implicitement, par tous les auteurs que nous venons de citer, puisqu'ils ne parlent uniquement que du transport des mar- chandises ^ Fennemi, et jamais de la veute que I'on pent eu faire sur son propre terri- toire. II y a plus : quelques-uns out enseignS explicitement la mSme doctrine. ' He then cites Wolf, and the following passage from Vattel : Premiferement, tout ce qu'iine nation fait en usant des ses droits, et uniquement eu vue de sou propre bien, sans partiality, sans dessein de favoriser une puissance au prejudice d'une autre, tout cela, dis-je, ne peut, en giSn^ral, Stre regard^ comme eon- traire &, la neutrality, et ne devient tel que dans ces occasions particuliferes oil il ne peut avoir lieu sans faire tort k I'une des parties, qui a alors un droit particulier de s'y opposer. Disous encore, d'aprfes les mSmes principes, que si une nation fait commerce d'armes, de bois de construction, de vaisseaiix, de munitions de guerre, j'e ne puis tromer mauvais qu'elle vende de tout cela h mon ennemi, pourvu qu'elle ne se refuse pas de m'en vendre auSsi a uu prix raisonnable. Elle exerce son trafic sans dessein de me nuire, et en le continuant comme si je n'avais point de guerre elle ne me donue aucun juste sujet de plainte. Pursuing the same subject, in chapter vi, page 65, Lampredi says: Si Galiani s'^tait donn^ la peine d'examiuer ainsi attentivement la question, et de la rapprocher des principes que nous venons de d^velopper, il se serait aisiSmeut aper?u que la difficult^ qu'il 61feve, relativement si la vente des marcbandises de contrebande, 6tait absurde de droit et de fait, parce qu'il aurait senti que s'il est permis aux neutres, en vertu du droit uaturel, de transporter aux bellig&ants quelqne espfece de marcbanf disc que ce soit, pins ils doivent, k bien plus forte raison, gtre autoris^s k les vendre sur leur propre territoire. In chapter vii, page 72, he says : Le caractfere de contrebande ne vient done pas aux marcbandises, de I'usage qu'on pe.ut en faire dans la guerre, mais de toute autre source. Anssi longtems qn'elles sent sur le territoire neutre, elles ne diffferent pas des autres marcbandises ; elles s'y ven- dent et s'y aobfetent de la m6me manifere et sans aucune difference. Deux circonstaii- ces font prendre h ces marcbandises le caract&re de contrebande : 1, qn'elles soient' pass^es il la puissance de I'ennemi, on il moins destinies il y passer ; 2, qn'elles soient sorties du territoire neutre. Alors elles deviennent oboses hostiles, res Iwstiles : elles prennent le caractfere de marcbandises de contrebande ; et si elles sent trouv^es hors de tout juridiction souveraine, comme, par exemple, si I'on les tronvait en pleine nier, elles peuvent fetre 16gitimement arr6t6es et confisqu^es par I'ennemi, quel que soit le pavilion qui les couvre, non pas parce que ce sont des instruments ou provisions d6' COUNTER CASE OF GREAT BRITAIN. 399 gnerre, mais paroe que ce sont ties choses appartenantes a, I'ennemi, ou au moins parce qu'elles sont destinies a devenir sa propri6ti5 et h, acoroltre ses forces. D'oti il riSsulte que le souverain qui permet sur sou territoire le commerce libre de toutes sortes d'ohjets ne passe pas les droits de souveraiuet^, et les puissances bellig^rantes lie peuvent s'en plaindre ni I'accuser de donner la main ^ la vente des marchandises de ooutrebande, qui, sur son territoire, ne peuvent jamais avoir ce caract&re, et ne peuvent en porter le nom que lorsqu'elles sont devenues ou destinies k devenir la propri^tiS de I'ennemi, et sorties du territoire oil elles out 6t6 achet^es. In chapter viii, Lampredi fortifies these views by a detailed examina- tioa of numerous treaties, and of the practice of the different states of Europe ; the result of which is sufSoienMy stated in the extract given below, from Wheaton's History of the progress of the laws of nations. Azuni (Systdnie universel de principes du droit maritime de VJEurope, 1799, 1800, Digeon's translation) on all these points agrees with [146] Lampredi. In vol. ii, chap. 1, art. 3, p. 31, he distinguishes *be tween "commerce actif," consisting of exports to foreign nations, and "commerce passif," consisting of internal trade with foreigners. In chapter ii, articles 1 and 6, page 56, he says : Une grande partie du commerce de quelques nations europeennes, telles que les Sii^dois, les Norv6giens et les Russes, consiste en marcliaudises n^cessaires pour la guerre maritime, jjour la oonstrnotiou et poui l'€quipement d'uue flotte; elles vendent en terns de paix, h, quieonque en a besoin, du fer, du cnivre, des m^ts, des bois, du gou- dron, de la poix, et des canons, enfln des navires de guerre entiers. Quelles raisons pour- rait-il y avoir de priver oes nations de leur commerce et de leur mani&re de subsister, a I'occasion d'upe guerre k laquelle ils ne prennent ancune part ? II u'y a, dans le code de la justice et de l'6quit6, rien en faveur d'une telle protection. II est done n^cessaire d'^tablir oorame maxime fondameutaie de tout droit, que, les peuples neutres devant et pouvant lioitement continuer le commerce qu'ils font en terns de paix, on ne doit faire aucune distinction de denr^es, de marchandises et de mamifactures, quoique propres d, Id gueire, et que, par cette raison, la vente et le transport aux parties bellig^rautes en sont permis, si le commerce actif et passif Stait ^tabli en terns de paix, sans qu'ou puisse prendre, en aucune manifere, que la neutrality soit viol^e, pourvu que cela se fasse sans animosity, sans pr6f6rence et sans partiality. In the same chapter, art. 3, sec. 3, p. 83, he says : Si le droit des gens universel permet aux neutres qui sont en possession de faire un commerce actif avec les nations bellig^rantes le transport impartial de quelque espfeoe de matchandise k une d'elles, quoiqu'elle soit dii nombre de ctelles appelfies contre, bande, par le m&me principe de raison, la vente des m6mes marchandises sur le propre territoire doit &tre permise toutes les fois que la nation neutre aura fait avant la guCrre nn commerce passif avec la nation bellig^rante. Ainsi, le commerce g^ngral passif ou la vente impartiale sur le propre territoire des neutres, de marchandises, denr&s, ou maniifaetures, de toute espice, sera toujours permis, pourvu que le souverain n'ait pas fait un traits particulier avec un des bellig&ants dont les sujets viennent faire des achats et des provisions sur le territoire neutre, et qu'il ne se m&le paa des achats, des ventes et des autres coutrats qui transmettent la proprifit^, qu'il n'ordonne pas qu'on remplisse les magasins de provisions de guerre, et ne fasse pas mcttre ses navires a la voile pour les transporter sur le territoire du bellig^rant. En prot^geant cSgalement le commerce de son pays, en permettant k ses sujets de continuer leur com- merce de la mgme manifere et avec la m6me liberty qu'avant la guerre, il ne fait qu'user de droits incontestables qui ne peuvent 6tre limitiSs que par des conventions sp6ciales, express^ment ou tacitement faites. Sec. 5. Malgr6 la solidity de ce principe fondamental, Galiani a voulu iStablir une th^orie absolnment contraire, non seuloment au principe que j'ai pr^c^demment 6tabli, niais encore k tons les autres principes qu'il a adopt^s dans son ouvrage. Sec. 6. Aprfes avoir enseign^ avec raison que la neutrality n'est pas un €tat de chose nouvelle, mais la continuation d'un ancien 6tat; aprfes avoir ajout6 que I'^tat de neutrality n'est et ne pent fetre un nouvel 6tat dans lequel passe une souverainet6, mais une permanence et une continuation du pr^c^dent, qui est tel, parpe qu'il n'est pas survenu de nouvelles causes qui I'obligent k changer, il en conclut (au grand ^tonnement de quieonque est dans son bon sens) que les neutres ne peuvent vendre sur leur propre territoire, comme ils le faisaient auparavant, aux sujets des nations bellig^rantes, des ajmes,'de8 instruments et d'autres munitions de guerre. Mais si la guerre, comme il le dit, n'apporte ancun changement au premier 6tat d'un peuple neutre, si la guerre n'an^antit pas les droits qu'il avait «n tems de paix, par quelle raison, die-je, doit-il abstenir de faire les commerce qu'il faisait avant la guerre ? Par quelle raison scra-t-il 400 . TREATY OF WASHINGTON, oblige de oliaiiger son €tat, qui, selon, les propres principes de Galiani, ne doit, au moyen de la Deutralit? qu'il a adoptee, etre alt6r6 en rien ? Par quelle raison, enfin, ne j^oifrrg,- t-il pas vendre, dans an port neutre, mm vaisseau propre a la navigation, avec lea attirails de gueire ? On n'en trouve pas d' autre dans Galiani que celle de la confusion qu'il a j.et^e, dans ses theories, en se laissant transporter par I'esprit de parti, lorsqu'il a Toulu i6f\i-. ter I'opinion de Lampredi, qui soutient le contraire. C'est pr6cis6ment alorsquela v^rit6 se cache dans les t^nfebres de ses subtiles raisonnements et de ses ing^uieux para- logismes. II est done n^cessaire que je r^pfete ici le principe incontestable que j'ai pr^c^demment rapports, qu'en suivant le droit oonventionnel de I'Europe, les neutres ne peiivent porter les choses qui sont spfioialemeut propres h la guerre, et qui y sont directement employees, raais qu'ils peuvent sans inconvenient, selon le droit uiiiTersel des gens, les vendre comme marchandise sur leur propre territoire h qniconque se pr6- sente pour les acheter, puisqu'ils le font sans partiality, et sans montrer de faveur plut6t pour une partie bellig^rante que pour I'autre. No European writer, before 1858, had advanced any doctrice at vari- ance with the passages above cited from Lampredi and Azuni, except so far as Galiani had done so ; and the doctrine of Galiani, as is shown in these extracts, (and in other passages of the same writers,) was not only novel, but inconsistent with itself. In England there is no trace of a different doctrine having been held or advocated by any jurist; although the interest of England in this class of questions bad been generally that of a belligerent. In 1721, on the occasion of a complaint being made by the minister of Sweden that certain ships of war had been built in England and sold to the Czar, the judges were ordered to attend the House of Lords and deliver their opinions on the question, whether the King of England had power to prohibit the building of ships of war, or of great force, for foreigners, and they answered that the King had no power to prohibit the same. — Fortescue's Reports, p. 388.) * ! Mr. Eeddie, of Edinburgh, whose useful " Eesearches, historical and' critical, in maritime international law," were published in 1844, cites with approbation the views of Lampredi and Azuni on the point in' controversy between these writers and Galiani, and bestows especiair praise upon the former of these jurists. In the case of the United States, a passage is, it is true, cited from'' the well-known work of M. Hautefeuille, entitled " Les droits et les devoirs des nations neutres en temps de guerre maritime," published in 1858, in which the author affirms that the building or arming in a neutral port of a vessel of war for a belligerent is a violation of the neutral territory and of the sovereignty of the neutral, and that cap- tures made by such a vessel are unlawful. M. Hautefeuille is a [147] writer of great ingenuity and *research, but the foundation of his work is the assumption that the settled and ascertained' usage, or, as it has sometimes been called, the positive law, of nations, is to be rejected as erroneous when it appears to conflict with such con-' elusions as he is able to draw from a priori' ve&soTimg. His statements of principle are, therefore, to be received with caution, but his state-;' ments of fact are generally careful and valuable. It is apparent, how- ever, that in the above-mentioned passage M. Hautefeuille cannot have intended to condemn the mere construction, to the order of a belliger- ent, of a vessel of war which is not armed or equipped for war when she leaves the neutral port, since in a subsequent part of the same work he coiitends that she is not even contraband of war, when sent to sea, unless armed : A l'(5gard des vaisseaux construits, la question n'a jamais 6t6 tranoluSe par les^ trait<5s ; pen d'auteurs s'en sont occupfe, et ceux qui I'ont fait se sont born^s, comme Azuni, a, ^noncer une opinion sans eritrer dans la discussion. HUbnera suivi cette; marche ; il declare contrebamde les vaisseaux de guerre construits dans les ports* neutres, pour le compte de I'un des bellig€rants, et faisant route pour ses <5tats. COUNTER CASE OF GREAT BRITAIN. 401 Je ne puis oomprende qu'uu batiment, quelles que soieut sa grandeur, sa forme, sa destination, soit un objetde oontrebande de guerre. Le navire n'est pas propre jl la gnerre, pr6par6 pour servir exolusivement aax op(Sratioaa milibaires, apto h, Stre em- ploys k oes operations, imm6diatemeiit et sans aiicun changemeut, sans auoune addi- tion. Lorsqu'il est dSpourvu dea canons, des munitions, des armes, et des hommes qui doivent les employer, 06 n'est pas uue machine de guerre; o'est un vSliioule plus on moins grand, pins ou nioins solide, mais ce n'est qu'un vShioule. Pour lui donner les qualitSs spSciales et exclusives qui determinenr. le caractfere de coutrebande de guerre, il est niSoessaire de transporter h bord des canons, des atmes, des munitions, en un mot tout I'attirail du combat. C'est alars seulement que le bd,timeut devient, uon une machine de guerre, mais une machine portant des instruments degnerre, et susceptibles de nuire, par cette circonstance seulement, an bellig&ant. Mais la machine elle-m6mo, mais le viShioule d(5nu6 de son armement, ne pent Stre r6pnt(5 nuisible. Au reste, il faut convenir que ce commerce est pen frequent, et la meilleure prenve que je puiase don- ner de l'innocuit6 de ce uSgoce est le silence du droit secondaire ^ son Sgard. After stating that materials for sbip-building and for the equipment of ships can under no circumstances be contraband of war, he con- cludes : Les idtiments non armes, construits dans les ports neutres et vendus aiix nations engagees dans les hostUit4s, quelles qiie soient leur force, la nature de leur construction, soni dgalement ohjets d'un commerce lieite. lis doivent ^tre r^gis par la rigle gendrale, qui est la libertien- tiere du commerce entre les nations neutres et les deux belligerants, — (Hnutefeuille, vol. ii, pp . 144-i46.) M. Hautefeuille, therefore, whohas been cited by theUnited States, here goes beyond all preceding writers, and asserts with the utmost clear- ness that a vessel not actually armed for war is, under all circumstances, an innocent object of lawful commerce, wliatever may be her size or force, or the character of her construction, and he adds that the best proof ot; this is that the law of nations, so far as it rests on interna- tional usage and practice, has been wholly silent on the subject. The Government of the United States has further cited a passage from Ortolan's " Diplomatie de lamer." This passage is not found in any edition of M. Ortolan's excellent work anterior to the civil war. It expresses, therefore, an opinion recently formed by the writer on a ques- tion which he evidently regards as a new one, but it is not, nor indeed does it purport to be, evidence that such an opinion had been held be- fore, much less that it had been sanctioned by the usage and general consent of nations. Among the jurists of the United States there are no more famous names than those of Story and Wheaton. The opinion of the former was clearly expressed in the case of the Santissima Trinidad, (7 Wheaton, p. 283,) where he said, " There is nothing in our laws, or in the laic of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ;ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation." Wheaton, in his excellent History of the progress of the law of nations, (French edition, Leipsic, 1853, vol. i, p. 376,) referring to the controversy between Lampredi and Gallani, writes as follows : Lampredi passe maintenant h, I'examen d'une question oiseuse suscH4epar Galiani, savoir : " Si le uruit des gens conveutionnel,"qni interdit le commerce avec Teunemi de marchau- dises decontrebande,'prohibe la vente de ces marchandises dans le territoire neutre." Galiani rSpoud ^ cette question par I'affirniative, et il pretend qu'un vaisseaupar exemple, eonstruit et ami pour la guen'e dans un port neutre nepeut y Stre l6galemeM vendu d wie des parties helligdrants. Lampredi se domie leaucoup de peines svperfiues ponrappuyer, par la raison et I'autoritS des publicistes pry others, indispensable to the development of the strength of republican institutions and the American States, and to inflict upon their people the irreparable injury of depriving them of privileges neces- sarj- to their private prosperity and the preservation of the liberties of their race. It is incredible that it should have been thought necessary permanently to suppress as crimes on the part of our citizens transactions which are not punished as criuies else- wliere, for the benefit of nations inimical, if not hostile, to ns, and against states strug- gling for independence and liberty in emulation of our own example. No ; these concessions to the peace of the world were made for the time when they were enacted. It was au opportune and patriotic policy. The preservation of the republic was the first duty of our fathers, as it is now ours. It is destined, if sustained, to be the grand disturber of the right divine of kings, the model of struggling nations, the last hope of the independence of states and of rational liberty. To the example and prospect of our fathers we still adhere. Butif the time has come for which they waited and worked, or whenever it shall come, in which the rights of the country can be asserted, its interests protected without departure from the estab- lished policy of our government, which we indorse without hesitation, and to which we adhere without reservation, it is our opinion that the opportunity should not be ■ lost. And we therefore recommend, as incident to this duty and this day, a thorough revision of the statutes affecting our national relations with other governments, and the enactment of such laws as will limit its prohibitions and restrictions to those im- posed by the laws of nations, the stipulation of treaties, the reciprocal legislation ,, of other governments, the freedom of commerce, the independence of states, the ! in1 erests of civilization, and that will curb the power of nations at war, and strengthen ' and extend the rights of those at peace. Ships are articles of commerce; they are in no liberal or just sense contraband of . war, nor are the materials of which they are made. The recent improvements in naval, j. architecture are such as to diminish the distinctions between merchant-vessels audj ships of war, and to facilitate the adaptation of one to the purposes of the other. A strong-built, swift-sailing merchant Vessel or steamer could be made with a single gua ■ ■ an efl'ective war vessel. To prohibit our citizens from building such vessels or seUiug material for their construction at a time when all nations, except our own, are at war, because they may be employed for hostile purposes by foreign subjects, or to demand bonds in double the amount of vessel, cargo, and armament, and to require officers of the customs to seize and detain them whenever cargo, crew, or "other circumstances" shall render probable a suspicion that they are to be so used, and where American citi- zens are part owners only, is substantially to dei>rive them of their rights to engage in the construction of vessels or to furnish materials therefor. Considering the limitless capacity of the country in this respect, it is aprivilege that ought not to be surrendered except upon grounds of absolute necessity and justice.— (Appendix to British Case, vol. V, pp. 347, 348.) The principal alterations proposed in that bill were to make it clear that "fitting out" a vessel for a belligerent was'not prohibited, and that^^ there must be "fitting out and arming;" to repeal the clauses known as "bonding clauses;" to insert a declaration that the act should not "pro- hibit citizens of the United States from selling vessels, ships, or steamers built within the limits thereof, or materials or munitions of war the growth or product of the same to inhabitants of other countries not at war with the United States;" and to repeal the clauses making it an offense to begin or set on foot, or provide or prepare the means for any military expedition or enterprise to be carried on from the limits of the i United States against any foreign country at peace with the United States, (the clause under which the Fenian leaders were prosecuted^) qOUNTER CASE OF GREAT BRITAIN. 409 aticl which authorize the President to employ the military or naval forces of the republic to prevent such expeditions. Tlie bill did not become a law, as the Senate refused to pass it with- out consideration, and referred it to the Senate Committee on Foreign Eelations; and Congress adjourned witliout the committee having made a report. The immediate effect of the bill, if passed, would have been to facili- tate the dispatch from the ports of the United States of vessels to be employed by Chili and Peru in the war they were then carrying on against Spain. [153] *ANNEX (C.) POSITION AND DUTIES OF THE LAW-OFFICERS OF THE CROWN IN ENGLAND. As it has been necessary to refer from time to time to the opinions given by the British law ofiicers, it may be convenient to explain more precisely than has been hitherto done what is aomxco their position as the legal advisers of Her Majesty's government. In England there is no ministry of justice or similar department of state to which recourse can be had by other departments when matters are brought before them on which a decision involving a question of law 'is required. This want is supplied by the appointment of three law-ofScers, as they are called. Two of these — the attorney-general and solicitor-general — are barristers or advocates, with seats in the House of Commons, who have been selected by the ministry of the day, and who leave office when that administration is changed. They occupy, therefore, a dbuble posi- tion — as the confidential advisers of the government on legal subjects, and as the natural defenders and expounders in Parliament of the pro- ceedings which the government may adopt upon their recommendation. The third law-officer — the Queen's advocate — is a permanent official, and does not leave office on the resignation of the ministry by whom he was appointed. It has been usual to select for this office a barrister who has a special knowledge of civil and international law; and he is in consequence more particularly the legal adviser of the foreign office. Like, however, the attorney-general and solicitor-general, he has private practice as an advocate, and has generally numerous duties devolving upon him in connection with ecclesiastical and civil jurisdiction. The law-officers have no bureau or office set apart for their use, and no regular staff of assistants or archives. As the Queen's advocate therefore frequently possesses, from the permanent character of his ap- pointment, a knowledge of official precedents with which the other law- pffieers may not be familiar, he generally acts as their draughtsman in the preparation of reports. Up to the date of Sir John Harding's retire- ment the Queen's .advocate's name stood first in the patent or letter of appointment under which the law-officers act; and he had, therefore, precedence over the other two. The result was that papers on which an Opinion was requested were sent to him first, and, when he had pe- 410 TREATY OF WASHINGTON. rused and written his minute upon them, were passed on to the attor- ney-general, and afterward by him to the solicitor-general. In all cases of 'importance, and particularly when time is pressing^ it is usual for the three law-officers to meet and confer together, after they have all read the papers, the appointment for the purpose being usually made by the senior in rank of the three! Having thus show.n the position occupied by the law-officers toward each other, and toward the government, it remains to explain the man- uer in which papers are referred to them, taking as an example questions arising under the foreign-enlistment act of 1819. By the 5th, 6th, and 7th clauses of that act the officers of customs and excise were empowered to seize atid detain vessels in case of con- travention of the act, in the same manner as vessels were seized and detained uuder the laws for the protection of the revenues of customs and excise, or the laws of trade and navigation. The duties of the officers of customs being primarily for the collection and protection of the revenue, the collectors or other head officers of the customs at the ports are under the authority of the lords commisr sioners of Her Majesty's treasury, of which department the board of customs in London is a branch office. When, therefore, the consul of a foreign belligerent power has a complaint to make at a port that the foreign-enlistment act is being contravened to the prejudice of his country, he proceeds to the collector of customs, and lays before him the evidence he may have to adduce in support of the charge. This evi- dence is generally in the form of written statements, or affidavits, drawn up in proper shape, and sworn to, or solemnly declared to be true, before a magistraite. Copies or duplicates of these affidavits will then be forwarded by the customs collector to the board of customs iii Loudon, and by the cousul to the diplomatic representative of his country. In London the board of customs will transmit the affidavits to the treasury, and probably also take the opinion of their departmental legal adviser upon them. Some little time is consumed in the mere transmis- sion of th£ papers, the custom-house being situated on the Thames, be- low London Bridge, and the treasury in Whitehall, near the Houses of Parliament, the distance between the two being about three miles. The treasury will next send the papers to the foreign office, and ask instructions. In the meanwhile the foreign minister will have [154] received the affidavits and dispatch inclosing them from the *con- sul, and will likewise bring or send them to the foreign ofiice. The secretary of state for foreign affairs immediately directs them to be transmitted to the law-officers for their opinion. This is done by writing a letter addressed to the three law-officers, and requesting their opinion upon the papers at their earliest convenience. This letter is taken to the senior law-officer, either to his chambers or to the court in which he may be, or sometimes to his private residence ; he, when he has read and considered the papers, either sends them on to his col- league next in order of precedence, (by whom, in that case, they are transmitted to the third,) or makes an appointment for a meeting to deliberate on the subject, in the mean time retaining the papers in his own hands. When all the law-officers have had the opportunity of suf- ficiently considering the papers, they consider, in consultation together, the draught report, (prepared usually, as previously stated, by the Queen's advocate, and a letter is drawn up, fair copied, and signed by them, containing their opinion. This letter is sent to the foreign office, and the secretai-y of state is guided by it in the reply which he gives to the treasury and foreign minister. INSTEUCTIONS THE AGENT AND COUNSEL PROCEEDINGS AT GENEVA DECEMBER, 1871, AND APRIL, 187S. INSTRUCTIONS. Ko. 1. Mr. Davis to Mr. Fish. ' Department of State, Washington, November 13, 1871. Sir : Herewith I band you a priuted copy of the Case which I have prepared to be presented to the Tribunal at Geneva on behalf of the United States. This Case will be accompanied by seven volumes of Documents, Evi- dence, and Correspondence. Five of these volumes consist of the cor- respondence and other matter transmitted to the Senate by the Presi- dent, April 7, 1869. The sixth volume contains an arranged selection from the previous five volumes, and a quantity of new matter from the captured rebel archives and elsewhere. This volume and its full table of contents and the excellent index in the seventh volume, were pre- pared by Charles C. Beam an, jr., esq. It gives me much pleasure to record my sense of the great value of Mr. Beaman's services. Any one who looks at this volume will see how carefully and intelligently he has performed his work. The seventh volume contains some miscellaneous matter and full state- ments of the claims for losses, national and individual. The former were prepared at the Navy Department. Their completeness leaves nothing to be desired. The latter were prepared under my direction by the clerks in this Department, and show the nature and amount of each claim, and the proof on file in the Department by which it is supported. I desire to bear testimony to the intelligence and fidelity with which this work has been done by the clerks charged with it. For days, I may say weeks, in the most oppressive part of the summer, they staid cheerfully at the Department, working upon this statement until nearly midnight each day. Without such labor on their part it could not have been got ready in time. I have the honor, &c., J. C. B. DAVIS. No. 2. Mr. Fish to Mr. Davis. Department op State, Washington, Novemher 14, 1871. Sir : I have received the copy of the Case with your accompanying letter of yesterday. The President approves of your presentation of the Case, and you are instructed to present it and the seven accompa- 414 TREATY OF WASHINGTON. nying volumes at Geneva, in the manner required by the Treaty, as the Case of the United States, and the documents, official correspondence, and other evidence on which they rely. I am, »&c., ' ' HAMILTON FISH, No. 3. Mr. Fish to Mr, Davis. DliPARTMENT OP StATB, Washington, N^ovember 14, 1871. Sir : Your appointment and acceptance of the position of Agent of the United States before the Tribunal of 4rbitration at Geneva make it necessary to give you brief instructions on the subject of your duties. You are expected to be at Geneva as early as the morning of the 16th of December next. It is probable that the Tribunal will be organized on that day or the 17th. You will deliver the Case and the seven ac-' companying volumes, in duplicate, to each of the Arbitrators and to the Agent for Great Britain, as required by the Treaty. I am informed" that Lord Tenterden will represent Great Britain as its Agent. You are aware that Congress has made no appropriations for the pay- ment of an agent's salary or expenses. The President will advise' that your compensation shall be fixed at the rate of ten thousand dol- lars a year, and your necessary expenses suited to the position yoa occupy." In anticipation of such approptiation you will receive here-; with a check upon Eiggs & Co. for twenty-five hundred dollars, payable in gold coin. Herewith also you will receive a copy of the cipher of this Depart-' ment. You are familiar with the views and wishes of this Department in regard to the general position to be taken in the discussion of the Alabama claims before the Tribunal. Should any new important points be suggested which, in your judgment, materially vary from or in any way conflict with those views and wishes, you will communicate at once with the Department by telegraph, if necessary to have an immediate decision ; by mail, if there be time to obtain a reply. I am, &c., HAMILTON FISH. No. 4. Mr, Fish to Mr, Gushing,* Department op State, Washington, December 8, 1871. Sir : The President having appointed you one of the Counsel of the, United States in the matter submitted by the Treaty between this Gov- ernment and Her Britannic Majesty, signed in this city on the 8th day of May last, to the Tribunal of Arbitration to meet in Geneva, and the * Same to Mr. Eyatts and Mr. Waite. INSTRUCTIONS TO THE AGENT AND COUNSEL. 415 appointment having been accepted, it becomes necessary to give you, brieiiy, the President's instructions on the subject of your duties. " The Case of the United States has been prepared, under the gen- eral supervision of the Secretary of State, by Mr. J. C. Bancroft Davis, Assistant Secretary of State, who has been appointed to attend the Tribunal as the Agent of the United States to represent this Govern- ment, generally, in all matters connected with the Arbitration. It is accompanied by seven volumes, which contain the Evidence, Doc- uments, and Correspondence on which the United States rely. Copies of the Case,^ and of the accompanying volumes, have been transmit- ted to you. Mr. Davis sailed for Europe some time since, and intelli- gence of his arrival in Prance has been received. He is instructed to be at Geneva on or before the 16th day of December instant, and there to deliver the Case and documents in duplicate, as required by the Treaty. It js expected that he will then receive the official copies of the British Case, &c. And it will be his duty to confer with the Coun- sel of the United States as soon thereafter as they may be ready, with a view to the preparation of the Counter Case required by the Treaty. It is also expected that the Counsel shall be in Europe as soon as their convenience will permit. They will arrange among themselves, and with -Mr. Davis, as to the most convenient place for their meetings and consultations. In the absence and in anticipation of an agree- ment as to such place of meeting, it is thought desirable that your first meeting be in Geneva, at as early a day after your arrival in Europe as- shall be convenient; you can then agree with Mr. Davis as to the time and place of your future meetings. The Case contains the general views of this Government on the subjects likely to be discussed at Geneva, so far as the facts are now known. Should it become necessary to deviate materially from the positions there taken, you will refer to this Department. Mr. Davis has a copy of the cipher of the Department ; in case you find it neces- sary to communicate secretly, he will enable you to avail of the cipher. Mr. Davis is fully instructed on the views which the President takes of the pohtical questions that may be involved in the discussion of the subject as it now stands. Should the political questions involved in the case assume any different aspect, on the presentation of the C^ase of the British Government, or in the progress of the case before the Tribunal, they will be referred to this Department for submission to the President, and for his further instructions. The presentation and the management of the legal argument, and the treatment of the questions of law and evidence, are committed to the dis- cretion and judgment of yourself and your associate Counsel. The President thinks that in this branch of your duty you may find Mr. Davis's familiarity with the history of the Case of advantage, and that a free interchange of opinion and of views, and consultations with him, may be of benefit. Mr. Davis is instructed to correspond frequently with this Depart- ment. You are invited to communicate with the Department as freely, and fully, and frequently as you may find it convenient. It is scarcely necessary to say that you are expected not to correspond (except for the purpose of obtaining information pertinent to the case) on the sub- ject of the Case other than with this Department. The instructions regarding the Counter Case also apply to the Argu- ment. The President desires to have the subject discussed as one between 416 TEEATY OF WASHINGTON. the two Governments ; and he directs me to urge upon you strongly to secure, if possible, the award of a sum in gross. , In the discussion of this question and in the treatment of the entire Case, you will be careful not to commit the Government as to the dispo- sition of what may be awarded, or what may be recovered in the event of the appointment of the board of assessors mentioned in the tenth article of the Treaty. It is possible that there may be duplicate claims for some of the property alleged to have been captured or destroyed, as in the cases of insurers and insured. The Government wishes to hold itself free to decide as to the rights and claims of insurers, upon the termination of the case. If the value of the property captured or destroyed be recovered in the name of the Gov- ernment, the distribution of the amount recovered will be made .by this Government, without committal as to the mode of distribution. It is expected that all such committal be avoided in the argument of Counsel. You are aware that Congress has made no appropriation for the ex- penses of the Arbitration. The President has invited the action of Con- gress on the subject, and you have been advised that he would recom- mend your compensation to be iixed at ten thousand dollars, (coin,) and your expenses suited to the important position you occupy. In anticipation of the appropriation, you will receive herewith a check upon Eiggs & Co., of this city, for twenty-five hundred dollars, pay- able in gold coin, for which you will please return a receipt. . Each of the Counsel will probably need the services of a clerk. . In the appropriation which will be asked of Congress, an estimate will be in- cluded for the compensation of a clerk to each of the Counsel, at the rate of three thousand dollars per annum. It will depend on the granting by Congress of the aggregate amount asked whether tljis allowance can be made. I transmit herewith a special Passport for yourself and such of your family or suite as may accompany you. You will be pleased to advise me of the time when you contemplate to leave the country to enter upon the duties of your appointment, and also to inform the Department of your arrival in Europe and at Geneva, and keep it advised of your address from time to time, as you may re- move from place to place, so that immediate communication may be had with you at all times, by telegraph or by mail. A copy of these instructions will be"furnished to Mr. Davis, and I inclose herewith a copy of the letter to him in which they are inclosed. I have, &c., HAMILTOIif FISH. ISTo. 5. Mr. Davis to Mr. Fish. Geneva, December 15, 1871. (Eeceived January 10.) Sir : I have the honor to report that I left Paris, the 1.3th instant, for this place in company with Mr. Adams, Sir Alexander Cockburn, and Lord Tenterden. On the route we were enabled to discuss and arrange the preliminaries for the organization of the Tribunal. This has made the work to-day comparatively lighc. After calling upon the various Arbitrators this morning, we proceeded PROCEEDINGS AT GENEVA. 417 *o the Hotel de Ville to pay our respects to the President of this Can- ton and to the Council of State. "We were formally received by them, and Mr. Adams made a proper acknowledgment of our appreciation of their courtesy in tendering the Hotel de Yille for the conferences. At three o'clock the gentlemen had all arrived at the rooms assigned to us. The proceiedings commenced by an informal examination of the powers of the Arbitrators, all of which were found to be in due form. Mr. Adams then said that as neither he nor Sir Alexander Oockburn could preside, it had been thought advisable to invite the gentleman next in rank, in the order named in the Treaty, to preside over the meet- ings of the Tribunal. Sir Alexander Cockburn said that he seconded the proposal, not oiily for the reason given by Mr. Adams, but because Count Sclopis was one of the. most illustrious of the Jurists of Europe. Count Sclopis took the Chair, and returned his thanks in a neat speech. It had been arranged beforehand that Mr. Stampfli should be asked to name a Secretary. On the formal request by Count Sclopis, in the name of the Tribunal, he named Mr. Alexander Favrot, of Berne. The -gentleman was waiting in the ante-room, and was conducted to his place by Lord Tenterden and myself. I then presented the Case on behalf of the United States. Some new evidence from Melbourne and the Cape of Good Hope, which I had re- ceived at the last moment, had to be put in manuscript, in fact partly in piess copies ; but it is in press in Paris, and printed copies will soon be substituted. I send herewith a copy of the note accompanying the Cases. It was identical with all parties. I also send a copy of the note which Lord Tenterden presented with Ms Case and Documents. December 36. The conference was held to-day at the Hotel de Ville pursuant to ad- journment. All the Arbitrators were present, and it was determined to adjourn until June, unless one of the parties should convene an earlier meeting under the fourth article of the Treaty. I inclose copies of the Protocols of yesterday's and to-day's conferences. I have, &c., J. C. B. DAVIS. Mr. Davis to Mr. Adams. [luclosure No. 1.] Geneva, December 15, 1871. , The undersigned, Agent of the United States, appointed to attend the Tribunal of ' Arhitratiou convened at Geneva under the provisions of a Treaty, concluded at Wash- ington, May 8, 1871, between the United States and Her Britannic Majesty, has the honor, in compliance with the provisions of Article III, of the Treaty, to deliver here- with, in duplicate, to the Hon. Charles Francis Adams, the Arbitrator named by the President of the United States, the printed Case of the United States, accompanied by the documents, the official correspondence, and other evidence on which they rely. The undersigned, &c., J. C. BANCROFT DAVIS. [List of inclosures.] I. The Case of the United States, (2 copies.) n. Documents, Correspondence,' and Evidence in support of the Case of the United States, in seven volumes, (3 copies.) III. Certain otherDocuments, Correspondence, and Evidence in manuscript relating to the Alabama and to the Shenandoah, which reached the Agent too late to be printed with the volumes, (2 copies.) 27 A— II 418 TEEATY OF WASHINGTON. IV. The Certificate of the Secretary of State of the United States to the correctness of certain copies contained in the above-named volumes, (2 copies.) v. The Certificate of the Secretary of the Treasury of the United States to the cor- rectness of certain other copies contained in the above-named volumes, (2 copies.) VI. The Certificate of the Secretary of the Navy of the United States to the correct- ness of certain other copies contained in the above-named volumes, (2 copies.) VII. The Certificate of the Secretary of War of the United States to the correctness of certain other copies contained in the above-named volumes, (2 copies.) Note. — As soon as In closure No. 3 can be printed, printed copies will be furnished. It has been impossible to get them ready in time for this Conference. Lord Tenterden to Mr. Davis. [Inclosure No. 2.] Gexeva, Deceniber 15, 1871. The undersigned. Agent of Her Britannic Majesty, appointed to attend the Tribunal of Arbitration convened at Geneva, under the provisions of the Treaty concluded at Washington on the 8th of May, 1871, between Her Britannic Majesty and the United States, has the honor, in compliance with the provisions of Article III of the Treaty, to deliver herewith, in duplicate, to Mr. J. C. Bancroft Davis, the Agent appointed by the United States, the printed Case of the Government of Her Britannic Majesty, accom- panied by the documents, the official correspondence, and other evidence on which it relies. The undersigned, &c., TENTERDEN. Xo. 6. Mr. Davis to Mr. Fish. Geneva, April 15, 1872. (Received April 30.) Sir: I have the honor to inform you that I arrived in Geneva on the evening of Saturday, the 13th instant. Lord Tenterden arrived yesterday; General Gashing and Mr. Beaman also each put in an appearance yesterday. This morning we exchanged the Oouuter Gases. The British Counter Case was accompanied by a note from Lord Tenterden to the Arbitrators, of which a copy is inclosed. I thought the note required some notice on my part, and made the reply of which a copy is inclosed. The Counter Cases on the part of Great Britain, which were exchanged at the Hotel de Ville, were the copies for Mr. Adams, Count Sclppis, Mr. Stiimpfli, and myself. The copies for Sir Alexander Cockburn and Baron d'ltajuba were not exchanged in my presence. On our side, the copies for Sir Alexander Cockburn, Mr. Adams, Count Sclopis, and Mr. Stampfli were delivered in the Hotel de Ville. The copy for Lord Ten- terden was taken by his lordship from my room, and the copy for Baron d'ltajub^ was, by his express desire, retained in Paris, to be delivered after exchange here. After the adjournment I received from Paris your telegram relating to claims filed in the Department since March 22, and addressed a note to the Arbitrators and British Agent, of which a copy is inclosed. From these various enclosures you will be able to learn exactly what has officially taken place here to-day. I have, &c., J. O. B. DAVIS. PROCEEDINGS AT GENEVA. 419 Mr. Davis to the ArUtrators. [Inolosure ITo. 1.] The undersigned, Agent of the United States, appointed to attend the Tribunal of Arbitration convened at Geneva, under the provisions of a Treaty concluded at Washing- ton May 8, 1871, between the United States and Her Britannic Majesty, has the honor in compliance with the provisions of Article IV of the Treaty, to deliver herewith, in duplicate, the Counter Case of the United States and additional Documents, Corre- spondence, and Evidence, in reply to the Case, Documents, Correspondence, and Evi- dence presented to the Tribunal of Arbitration by the Government of Her Britannic Maiesty. ■• J. C. BANCROFT DAVIS. Geneva, Ap-il 15, 1872. ILiat of inclosures.] 1. Counter Case of the United States and additional Documents, Correspondence, and Evidence. • 2. Documents, Correspondence, and evidence in reply to the Case. 3. Documents and Evidence entitled "Revised List of Claims filed with the Depart- ment of State, growing out of fhe acts committed by the several vessels which have given rise to the claims generioally known as the 'Alabama Claims.' " 4. Documents and Evidence entitled "the Cuban Correspondence, 1866-71." 5. Copies of drawings of the Alabama, captured at Richmond by the forces of the United States. ■ / Mr. Davis to Mr. Favrot. [Inolosure IJ"o. ,2.1 ,, •, ik iq-»o Geneva, April 15, 1872. Sir- Inclosed I transmit to you sealed letters for each of the Arbitrators appointed under the first Article of the Treaty of Washington, and the British Agent. A copy is inclosed. , , j. j , i j. I will thank vou to forward the letters and accompanying documents, addressed to Count Sclopis, Mr. Sttimpfli, Mr. Adams, Sir Alexander Cookburn, and Lord Tenterden, respectively. , , j. , ■ i xi. it I have been requested by the Baron d'ltajubS, to take charge of his letter, and i will see that it is duly delivered to him with the documents to which it refers. ^ '""' '^°-' , J. C. B. DAVIS. Mr. Favrot to Mr. Davis. [Inclosiire Ko. 3.1 Hotel db Villb, Gejsteva, April 15, 1872. Sir: I have to acknowledge the receipt of your letter of this date, inclosing letter for each of the Arbitrators appointed under the first Article o± the Treaty of Washing- ton, and for the British Agent. , . n 4. a i • nj I will forward the letters and the accompanyiilg documents to Count bciopis, Mr. Stampfli, Mr. Adams, Sir Alexander Cockburn, and Lord Tenterden, respectively. I hand you herewith the letter for Baron d'ltajubil, audi take note that you will see that it is delivered to him with the documents to which it refers. ^ ^"'' *°-' ALEX. EAVROT. Lord Tenterden, to Mr. Davis. [InClOSUre No. 4.] . ■■, -.r la^a Geneva, April 15, 1872. The undersigned. Agent of Her Britannic Majesty, appointed to attend the Tribunal of Arbitrationfconvened at Geneva under the provisions of the Treaty concluded at Washington May 8, 1871, between Her Britannic Majesty and the United Sta,tes, has the honor, in accordance with the fourth Article of the Treaty and the Protocol agreed upon at the meeting held on the 15th of December, to deliver herewith in duplicate to the Hon. J. C. Bancroft Davis, the Agent of the United States, the printed Coun- ter Case of the Government of Her Britannic Majesty, accompanied by additional 420 TREATY OF WASHINGTON. documents, official correspondeuce, and evidence in reply to the Case, Documents, Cor respondence, and Evidence presented l)y Mr. Davis on the part of the United States to the Tribunal at that meeting. The undersiarned, &c., '' TENTEEDEN. Zoi-d Tenterden to Mr. Davis. rinclosiive No. 5.] Geneva, Apiil 15, 1872. Sir : I have the honor to transmit to you a copy of a note, which, by direction of Her Britannic Majesty's Goverfiment, I have addressed to each of the Arbitrators appointed under the first Article of the Treaty of Washington, and which Trill be delivered to them together with the Counter Case which I have presented. I have, &c., TENTERDEN. Lord Tenterden to the ArMtrators. [Inclosure Xo. G.] Geneva, Ajnil 15, 1872. The undersigned, Agent of Her Britannic Majesty, is instructed by Her Majesty's Government to state to Count Sclopis, Baron d'ltajuba, M. Stiimpfli, Sir A. Cockburn, Mr. C. F. Adams, that, while presenting their Counter Case, under the special reserva- tion hereinafter mentioned, in reply to the Case which has been presented on the part of the United States, they find it incumbent on them to inform the Arbitrators that a misunderstanding has unfortunately arisen between Great Britain and the United States as to the nature and extent of the claims referred to the Tribunal by the first' Article of the Treaty of Washington. This misunderstanding relates to the claims for indirect losses put forward by the Government of the United States under the several heads of (1) " The loss in the transfer of the American commercial marine to the British flag." (2) " The enhanced payments ■ of insurance." (3) "The prolongation of the war and the addition of a large sum to the cost of the war, and the suppression of the rebellion ;" which claims for indirect losses are not admitted by Her Majesty's Government to be within either the scope or the intention of the reference to Arbitration. Her Majesty's Government have been for some time past, and still are, in correspondence with the Government of the United States upon this subject, and as this correspondence has not been brought to a final issue, Her Majesty's Government being desirous (if possible) of proceeding with the reference as to the claims for direct losses, have thought it proper in the mean time to present to the Arbitrators their Counter Case, (which is strictly confined to the claims for direct losses,) in the hope that, before the time limited by the fifth Article of the Treaty, this unfortunate misunderstanding may be removed. But Her Majesty's Government desire to intimate, and do hereby expressly and formally intimate and notify to the Arbitrators that the Counter Case i^fciresented without prejudice to the position assumed by Her Majesty's Government in the cor- respondence to which reference has been made, and under the express reservation of all Her Majesty's rights, in the event of a difference continuing to exist between the High Contracting Parties as to the scope and intention of the refei^ence to Arbitration. If circumstances should render it necessary for Her Majesty to cause any further communication to be addressed tcf the Arbitrators on the subject, Her Majesty will direct that communication to be made at or before the time limited by the fiftla Article of the Treaty. The undersigned, &c., , TENTEEDEN. Mr. Davis to Lord Tenterden. [Inclosure No. 7.] Geneva, April 15, 1872. My Loud : I have the honor to acknowledge the receipt of your note of this date, transmitting to me a copy of a note, which, by direction of Her Britannic Majesty's Government, you have addressed to each 5f the Arbitrators appointed under the first Article of the Treaty of Washington, and which has been delivered to them together with the Counter Case which you have presented. I have now the honor, to transmit to you a copy of a letter to the Arbitrators, which has been made necessary by your lordship's note to them, and have the honor to be, Very respectfullv, &o., J. C. BANCROFT DAVIS. I PROCEEDINGS AT GENEVA. 421. Mr. Davis to the ArUti-ators. [Inclosure ItsTo. 8.] \ Geneva, April 15, 1872. The uiKlersignecl, Agent oi tlie United States, has the honor to inform the Arbitrators appointed under the provisions of the Treaty concluded between the United States and Her Britannic Majesty on the 8th day of May, 1871, that he has received from Lord Tenterden, the Agent of Her Britannic Majesty, a copy of a note this day addressed by his lordship to each o£4;he Arbitrators, in which it is averred that some of the claims put forth by the United States in their Case are not within the scope or intention of this reference. The instructions to the undersigned from his Government not having contemplated the probability of such a course on the part of Her Majesty's Government, the under- signed is compelled in reply to reserve to his Government its full right hereafter to vindicate before the Tribunal the authority which it understands the Tribunal acquired under the Treaty in this respect. The undersigned, &c., J. C. BANCROFT DAVIS. Mr. Davis to Mr. Favrot. [Inclosure !N'o. 9.] ^ Geneva, April 15, 1872. Sir : I have to inclose a letter for each of the Arbitrators and for Lord Tenterden, which I will thank you to forward to them. I am. &c., J. C. B. DAVIS. Mr. Favrot to Mr. Davis. [Inclosure No. 10. J Hotel DE Villb, Geneva, April 15, 1872. SiK : I have the honor to acknowledge the receipt of your note of this day inclosing a letter for each of the Arbitrators and for Lord Tenterden, which you request me to forward to them. ' I shall have much pleasure in complying with your wishes, and avail myself of this opportunity to renew to you the assurances of the entire disinterestedness with which I remain, &c., ALEX. FAVEOT. Mr. Davis to Count Sclopis. [Inclosure No. 11.] The undersigned, Agent of the United States, has the honor to transmit herewith to CouutSclopisthefollowingcopy of a telegram received from the Secretary of State of the United States this day, and to ask to have it considered as a further appendix to the Counter Case of United States : " Since March 22, additional claims for capture and destruction and damage by in- terruption of voyage have been filed to the amount of five hundred and five thousand eight hundred and forty-nine dollars forty-six cents, and claims for increased insur- 'Tanoe premiums to the amount of three hundred and thirty-four thousand nine hundred .*Jmi thirty-three dollars ninety-eight cents'. '.,^,'- "FISH." The undersigned has the honor to renew to Count Solopis the assurance of his dis- tinguished consideration. J. C. BANCROFT DAVIS. CORRESPONDENCE RESPECTING THE GEIEYA ARBITRATIOI PROPOSED SUPPLEMENTAL AETICLE TO THE TREATY. CORRESPONDENCE RESPECTING THE GENEVA ARBI- TRATIOxN. No. 1. General ScJiencJc to Mr. Fish. [Telegram.] London, Feiriiary 2, 1872. London journals all demand that United States shall withdraw claiims for indirect damages, as not within intention of Treaty. Ministry alarmed. Am exerting myself with hope to prevent anything rash or offensive being done or said by this Government. Evarts here co- operating. SCHENOK. No. 2. Mr. Fish to General Schenck. [Telegram.] Department of State, Washington, February 3, 1872. There must be no withdrawal of any part of the claim presented. Counsel will argue the case as prepared, unless they show to this Gov- ernment reasons for a change. The alarm you speak of does not reach us. We are perfectly calm and content to await the award, and do hot anticipate repudiation of the Treaty bv the other side. FISH. No. 3. General SchencJc to Mr. Fish. [Telegram.] London, February 5, 1872. (Sent at 8.30 i). m.) Eeserving comment and further information until I can send written dispatch, I communicate Granville's note giving notice of British inter- pretation of Treaty, as follows : Earl GraftmUe to General Schenck. FOEBIGN Office, February 3, 1872. Sir : Her Majesty's Government have had under their consideration the Case pre- sented on behalf of the Government of the United States to the Tribhnal of Arbitra tion at Geneva, of which a copy had been presented to Her Majesty's Agent. 426 TREATY OF WASHINGTON. I will not allude iu this letter to several portions of the United States Case which are of comparatively smaller importance, but Her Majesty's Government are of opinion that it will be in accordance with their desire that no obstacle should be interposed to the prosecution of the Arbitration, and that it will be more frank and friendly toward the Government of the United States to state at once their views respecting certain claims of an enormous and indefinite amount which appear to have been put forward as matters to be referred to arbitration. Her Majesty's Government hold that it is not within the province of the Tribunal of Arbitration at Geneva to decide upon the claims for indirect losses and injuries put forward in the case of the United States, including the loss in the transfer of the Ameri- can commercial marine to the British flag, the enhanced payment of insurance, and the prolongation of the war, and the addition of a large sum to the cost of the war and suppression of the rebellion. I have stated above the importance which Her Majesty's Government attach to the prosecution of this arbitration. The primary object of the Governments was the firm establishment of amicable rela^ tions between two countries which have so many and such peculiar reasons to be on friendly terms, and the satisfaction with which the announcement of the Treaty was received by both nations showed the strength of that feeling. But there is another object to which Her Majesty's Government believe the Govern- ment of the United States attach the same value as they do themselves, namely, to give an example to the world how two great nations can settle matters in dispute by referring them to an impartial tribunal. Her Majesty's Government, on their part, feel confident that the Government of the United States are also equally anxious with themselves that the amicable settlement which was stated in the Treaty of Washington to have been the object of that instru- ment may be attained, and that an example so full of good promise for the future may not be lost to the civilized world. SCHENOK. No. 4. General Sclienclc to Earl Granville. Legation of the United States, London, February 5, 1872. My Lokd : I have tbe honor to acknowledge the receipt, on the eve- ning of the 3d instant, of your note of that date, in which, after stating that Her Majjesty's Government have had under their consideration the Case presented on behalf of the United States to the Tribunal of Arbitra- tion at Geneva, you proceed to say that you will not allude to several portions of that Case which are of comparatively smaller importance, but that Her Majesty's Government are of opinion that it will be in accordance with their desire that no obstacle should be interposed to the prosecution of the arbitration, and that it will be more frank and friendly toward the Government of the United States to state at once their views respecting certain claims, which you describe as of an enor- mous and indefinite amount, which appear to have been put forward as matters to be referred to arbitration. You then go on to state that Her Majesty's Government hold that it is not within the province of the Tribunal of Arbitration at Geneva to decide upon the claims for indirect losses and injuries put forward ia the Case of the United States, including the loss in the transfer of the American commercial marine to the British flag, the enhanced payment of insurance, and the prolongation of the war, and the addition of a large sum to the cost of the war and suppression of the rebellion. Eeferring, then, to the importance which Her Majesty's Government attach to the prosecution of the arbitration, you proceed to speak of the objects which Her Majesty's Government had in view in that arbi- CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 427 tration. The primary object, you say, was the firm establishment of amicable relations between two countries which have so many and such peculiar reasons to be on friendly terms ; and you add that the satisfac- tion, with which the announcement of the Treaty was received by both nations showed the strength of that feeling. But you say there is another object to which Her Majesty's Govern- memjuries thus received by a country which has, meanwhile, sedulously endeavored,to perform all its obligations, owing to the imperfection of the legal means at hand to prevent them, as well as the unwillingness to seek for more stringent powers, are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification." Later on, in the same letter, Mr. Adams also said: "Your Lordship is pleased to observe that you can never admit that the duties of Great Britain toward the United States are to be measured by the losses which the trade and commerce of the United States may have sustained. To which I would ask permission to reply, that no such rule was ever desired. The true standard for the measurement would seem to be framed on the basis of the clear obligations themselves, and the losses that spring from the imperfect performance of them ;" and "thus it is that, whatever may be the line of .argument 1 pursue, I am compelled ever to return to the one conclusion : the nation thai recognized a Power as a belligerent before it had built a vessel, and became itself the sole source of all the belligerent character it has ever possessed ore the ocean, must be regarded as responsible for all the damage tlmt has ensued from that cause to the commerce of a Power with which it was under the most sacred of obligations to preserve amity and peace," It will be seen that, although the general propositions of this letter might be wide enough to include the largest imaginable demands, it nevertheless abstains from put- ting forward any new claim in a definite or tangible form ; and purports rather to recapitulate and adhere to the tenor of the preceding correspondence. And in, this sense it was, evidently, understood by Lord Russell, who, in his answer of SOth August, 1865, referred to the suggestion of an arbitration contained in Mr. Adams's former let- ter of the 23d of October, 1863 ; and, while declining "either to make reparation and compensation for the captures made by the 'Alabama,' or to refer the question to any foreign State," offered a reference to a Commission of "all claims arising during the late civil wari" which the two Powers should agree to refer to the Commissioners. And again, on,the 14th October, he repeated: "There are, I conceive, many claims upon which the two Powejs would agree that they were fair subjects of investigation before Com- missioners. But I think you must perceive that if the United States Government were, to propose to refer claims arising out of the captures made by the 'Alabama' and 'Shenandoah' to the Commissioners, the answer of Her Majesty's Government must be in consistency with the whole argument I have maintained, in conformity with the views entertained by your Government in former times. I should be obliged, in answer to such a pro- posal, to say: For any acts of Her Majesty's subjects committed out of their jurisdic- tion and beyond their control,' the Government of Her Majesty are not responsible, «&c. On the 21st of October Mr. Adams addressed a long letter, with numerous inclosures, to Lord Russell, with reference to the "Shenandoah," alleging that vessel to have been received by the authoiitiea at Melbourne with knowledge of an illegal equipment in 446 TREATY OF WASHINGTON. 'this country; and insisting that, on that account, Her Majesty's Government assumed a resjionsibilitji for all the damagewhieh it had done, and which, down to the latest accounts, it was still doing, to the peaceful commerce of the United States on the ocean." A par- ticular claim hy the owners of a ship captured by the "Shenandoah" was presented with this letter. lu his letter to Lord Clarendon of the 21st November, 1865, Mr. Adams, under the instructions of his Government, declined Lord Russell's proposal for a limited reference' to Commissioners of such claims as the two Governments could agree upon. "Adhering," lie says, "as my Government does to the opinion that the claims it has presented, which' His Lordship has thought fit at the outset to exclude from consideration, are just and ' reasonable, I am instructed to say that it sees now no occasion for farther dfelay in giv- ing a full answer to His Lord.ship's propositions." The whole result of this correspondence, down to the change of Administration in this country in 1866, may he thus summed up: 1. That notwithstanding continual complaints, extending over a vast range of sub- jects, from the recognition of the belligerency of the Southern States downwards, ho " claims" against this country were ever defined, formulated, or presented on the part , of the United States, except for the specific losses of American citizens arising from the capture of their vessels and property by the "Alabama," "Florida," and " Shenandoah ;" and (2) that no such form of expression as " the Alabama claims " had ever, down to this time been used to describe even the claims in respect of those captures, much less tb oouiprehend any more vague and indefinite demands of indemnity to the general mer- cantile or national interests of the United States. On the accession of Lord Derby to power, Mr. Seward in a dispatch to Mr. Adams, dated the 27th August, 1866, thus defined the " claims" which it had been the object of the United States to press in the preceding correspondence, and of which he now again instructed Mr. Adams to urge the settlement: "You will herewith receive a summary of claims of citizens of the United States against Great Britain for damages ichich were suf- fered hj them during the period of our late civil war and some months thereafter, iy' means of depredations upon our commercial marine, committed on the high seas hy the 'Suwr ier,' the 'Alabama,' the 'Florida,' the ' Shenandoah,' and other ships of war, which were built, manned, armed, equipped, and fitted out in British ports, and dispatched therefroM- by or through the agency of British subjects, and which were harbored, sheltered, providfed, and furnished, as occasion required, during their devastating career, in ports of the realm, or in ports of British Colonies in nearly all ]parts of the globe. Tile table is not supposed to be complete, but it presents such a recapitulaiion of the claims as the evidence so far received in this Department enables me to furnish. Deficiencies will be suppiii.d here- of Ier. Most of t/ie claims have been from time to time brought by yourself, as the Presi- dent directed, to the notice of Her Majesty's Government, and made the subject of earnest and continued appeal. That appeal was intermitted only when Her Majesty's Government, after elaborate discussions, refused either to allow the claims or to refer them to a Joint Claims Commission, or to submit the question of liability therein to auy forat of arbitration. The United States, on the other hand, have all the time insisted upoa' the claims as just and valid. This attitude has been, and doubtlessly continues to be,' well understood by Her Majesty's Government. The considerations which inclined this Government to suspend for a time the pressure of the claims upon the attention of' Great Britain, are these: The political excitement in Great Britain, which arose during' the progress of the war, and which did not immediately subside at its conclusion, seemed to render that period somewhat unfavorable to a deliberate examination of the very grave questions which the claims involve, &c. * * The principles upon which' the claims are asserted hy the United States have been explained by yourself in an elabo- rate correspondence with Earl Russell and Lord Clarendon. In this respect, there seems to be no deficiency to be supplied by this Department. * * * Itis the President's desire that you noiv call the attention of Lord Stanley to the claims in a respectful but earnest manner, and inform him that, in the President's judgment, a settlement of them has become urgently necessary to a re-establishment of entirely friendly relations between the United States and Great Britain. Ihis Government, tvhile it thus insists upon these particular claims,is neither desirous nor willing to assume an attitude unkind or unconciliatory toward Great Britain. If, on her part, there are claims either of a commercial character, or of boundary, or of commercial or judicial regulation, which Her Majesty's Government esteem important to bring under e'jtamina'tion at the present time, the United States would, in such case, be not flnwilling to take them into con- sideration in connection tvith the claims which are now presented on their part, and with a view to remove at one time, and by one comprehensive settlement, all existing causes of misunderstanding." Mr. Seward proceeded to recommend, in support of these claiBis, the use of the saflie general arguments, (including prominently the alleged effect of the recognition of Southern belligerency, and the generalinjury to the national oomToerce of the United States,) which had been previously so often employed Mr. Adams. He added : The' claims upon which ive insist are of large amount. Tkey affect the interest of many tKousandr CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 447 eUixens of the United States, in various parts of the Republic. Tiie justice of the claims is sustained by the nniversal sentiment of tlie people of the United States." The claims specified in the inclosure to this dispatch (which is headed, " Summary of claims of citizens oftJie United States against Great Britain") relate exclusively to losses sustained by the owners and insurers of divers ships and cargoes captnred by the "Ala- bama," the " Shenandoah," the " Florida," and the " Georgia," respectively. This dispatch having been communicated by Mr. Adams to Lord Stanley, his Lord- ship, through Sir P. Bruce, (Lord Stanley to Sir F. Bruce, 30th November, 1866,) called attention to what he supposed to be an accidental error of Mr. Seward, in mentioning the " Sumter; " which " did not proceed from a British port, but was an American ves- sel, and commenced her career by escaping from the 'Mississippi.' " Then, after deal- ing with Mr. Seward's general arguments, and declining to abandon the ground taken by former Governments. " so far as to admit the liability of this country for the claims then and now put forward," he expressed his sense of the " incouveuienoe which arose from the existence of unsettled claims of this character between two powerful and friendly Governments," and his willingness to adopt the principle of arbitration, pro- vided that a fitting arbitrator could be found, and that an agreement could be come to as to the points to which arbitration should apply. He objected to refer to arbitra- tion the question of the alleged premature recognition of the Confederate States as a belligerent ; saying " the act complained of, while it bears very remotely on the claims now in question, is one as to which every State must be held to be the sole judge of its duty." In another dispatch to Sir F. Bruce, of the same date, he says, "I have confined myself exclusively to the consideration of the -American claims, pnt forward in Mr. Seward's dis- patch to Mr. Adams of the 27th August, and arising out of the depredations committed on American commerce iy certain cruisers of the Confederate States. But, independently of these claims, there may, for aught Her Majesty's Government know, 6e other claims on ihepart of American citimens, originating in the events of the late civil war, while there certainly are very numerous British claims arising out of those events, which it is very desirable should be inquired into and adjusted betweep the two countries. * * » The Government of the United States have brought before that of Her Majesty's one class of claims of a peculiar character, put forward iy American citizens, in regard to which you are authorized by my other dispatch of this date to make a proposal to Mr. Seward; but Her Majesty's Government have no corresponding class of claims to nrgeupon Ike attention of the American Government." And he, presently afterwards, sp«aks of " the spedal American claims, to which my other dispatch alludes," an expression which is adopted and repeated by Mr. Seward, in his reply to Sir F. Bruce, (12th January, 1867.) In a further dispatch to Mr. Adams ( I2th January, 1867) Mr. Seward justifies and re- affirms the sentence in his letter of the 27th August, in which the "Sumter" was mentioned, as " substantially correct," on the ground that that vessel had been admitted into the British ports of Trinidad and Gibraltar, and '' allowed to be sold " (in the latter port) " to British buyers for the account and benefit of the insurgents ; " and afterward received under the British flag, at Liverpool. His practical conclusion is that "the United States think it not only easier, but more desirable, that Great Britain should acknowledge and satisfy the claims for indemnity which we hare submitted than it would be to find an ;6qual and wise arbitrator who would consent to adjudicate them. If, however. Her Majesty's Government, for reasons satisfactory to them, shoiild prefer the remedy of arbitration, the United States would not object. The United States, in that ease, would expect, to refer the whole controversy, just as it is found in the correspond- ence which has taken place between the two Governments, with such further evidence and arguments as feither party may desire, without imposing restrictions, conditions, or limitations upon the umpire, and without waiving any principle or argument on either side. They cannot consent to waive any question upon the consideration that it involves a point of national honor; and, on the other hand, they will not require that any question of national pride or honor shall he expressly ruled and determined To this Lord Stanley (9th March, 1867, to Sir F. Bruce) replied : " To such an exten- sive and unlimited reference Her Majesty's Government cannot consent, for this reason, among others, that It would admit of, and indeed compel, the submission to the arbiter of the very question which I have already said they cannot agree to submit. The real matter at issue between the two Governments, when kept apart from collateral considera- tions, is whether, in the matters connected with the vessels out of whose depredations the claims ,of American citizens have arisen, the course pursued by the British Government, and by those who acted under its authority, was such as would involve a moral responsibility on the part of the British Government to make good, either in whole or in part, the losses of American cifeems. This is a plain and simple question, easily to be considered by an arbiter, and admitting of solution without raising other and wider issues; and on this question Her Majesty's Government are fully prepared to go to arbitration, with the further proviso that, if the decision of the arbiter is unfavorable to the British view, the examination of tlw several claims of dtizetis of the United States shall be referred to a Mixed Commission, 448 TREATY OF WASHINGTON. ' '" wUTi the view to tlie settlement offhe sums to he paid on them." His Lorrlship then repeats that, deeming it important "that the adjudication of this question should ntft leave other questions of claims, in. pihich their respective subjects or citizens may ie interested, to he matter of further disagreement between the two countries. Her Majesty's Government think it necessary, in the event of an understanding heing come to between the two Gdv- ernments as to the manner in which tJie special American claims {which havefm'med the sub- ject of the correspondence of which his present dispatch uiational claims existing between the two countries, are the very claims against which the United States cannot agree to, or admit of any prejudicial discrimination. To present these reasons now would be simply to restate arguments which have been continually presented by this Department in all the for- mer stages of this controversy ; while it is fair to admit that these reasons have been controverted with equal perseverance by Her Majesty's Department for Foreign Affairs." The general, result of this correspondence was that, in the Convention of the 14t(h January, 1869, other provisions were substituted for those of the IVth and Vlth Arti- cles of the Convention of 10th November, 1868, to which the United States Govern- ment had objected ; and the special mention of the " Alabama" was transferred from those Articles to Aqticle I, which provided "that all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States, and all claims on,ihe -part of citizens of the United States upon the Government of Her Britannic Majesty, includ- ing tlie so-called 'Alabama' claims, which may have been presented to either Government for its interposition with the other since the 26th of July, 1853, « » * and which yet remain unsettled, as well as any other such claims which may be pre- sented within the time specified in Article III of this Convention, whether or not arising out of the late civil war in the 'United States, shall be referred," &.c. On the 22d February, 1869, Mr. Thornton reported to Lord Clarendon the Resolution of a majority of the Committee on Foreign Relations of the Senate of the United States, recommending the Senate not to ratify this Convention, Mr. Sumner, who moved the resolution, having said " that it covered none of the principles for which the United States had always contended." He also inclosed a Resolution of the Legisla- ture of Massachusetts, '" protesting against the ratification of any Convention which did not admit the liability of England for the acts of the 'Alabehna' and her consorts." On the 22d March, 1869, Mr. Reverdy Johnson (without any special instructions) called upon Lord Clarendon, and proposed a further ohapge in the Ist Article of the Convention, which he thought " would satisfactorily meet the objections entertained by COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 451 the Senate to the Convention, and would secure its ratification by that body." This new change consisted in the introduction of " all claims on the part of Her Britannic Maj- esty's Government upon the Government of the United States, and all claims on the part of the Government of the Utiited States upon the Government of Her Britannic Majesty," as well as all claims of subjects and citizens, as to whicii the language of the Convention would have reoiaiued unaltered. Lord Clarendon reports what then took place in his dis- patch to Mr. Thornton, (March 22, 1869.) "I remarked to Mr. Johnson that his pro- posal would introduce an entirely new feature in the Convention, wliich was for the settlement of claims between the subjects and citizens of Great. Britain and the United Slates, but that the two Governments not having put fm-ward any claims oji each other, 1 conld only suppose that his object was to favor the introduction of some claim by the Government of the United States for injury sustained on account of the policy pursued by Her Majesty's Government. Mr. Eeverdy Johnson did not object to this interpre- tation of his amendment, but said that if claims to compensatiori on account of the recogni- tion hy the Bi-itish Government of the belligerent rights of the Confederates were brought for- ward by the Government of the United States, the British Governmen t might, on its part, h-ing forward claims to com/pensation for damages done to British subjects by American blockades, which, if the Confederates were not belligerents, were illegally enforced against them." Lord Clarendon, then, after referring to the proofs which Her Majesty's Government had given of their willingness to make any reasonable amendments to meet the wishes of the United States, and to the difference in the course of proceeding adopted in Amer- ica, said "that it did not seem proper for Her Majesty's Government to take any fur- ther step in the matter, or to' adopt any amendment to the Convention, even if it had been free from objection." 'Mr. Reverdy Johnson (still without authority) renewed his proposition, in a letter to Lord Clarendon, dated 25th March, 1869, in which he stated that he had reason to believe that the objection of the Senate of the United States to the Convention con- sisted "in the fact that the Convention provided only for the settlement by arbitration of thi individual claims of British subjects and American citizens upon the respective Govern- ments, and not for any claims which either Government, as such, might have upon the other." " My Governrtient, " he added, " believe, as I am now advised, that it has a claim of its own upon Her Majesty's Government, because of the consequences resulting from a premature recognition of the Confederates during our late war, and from the fitting out of the 'Ala- bama' and other similar vessels in Her Majesty's ports, and from their permitted entrance into other ports to be refitted and provisioned during their piratical cruise. The exiistence of such a claim makes it as necessary that its ascertainment and adjustment shall be provided for as the individual claims growing out of the same circumstances." The United States Government, down to this time, had insisted that the new Con- Vehtion ought strictly to follow the precedent of the Convention of 1853, which con- tained no provision for any specie^ of public claims. Lord Clarendon, therefore, on the 8th of April, 1869, thus answered Mr. Eeverdy Johnson : " Her Majesty's Govern- ment could not fail to observe that this proposal involved a wide departure from the tenor and terms of the Convention of 1853, to which, in compliance with your instruc- tions, you have constantly pressed Her Majesty's Government to adhere, as necessary to insure the ratification of a new Convention by the Senate of the United States. No undue importance is attached to this deviation ; but I beg leave to inform you that, in the opinion of Her Majesty's Government, it would serve no useful purpose now to consider any amendment to a Convention which gave full effect to the wishes of the United States Government, and was approved by the late President and Secretary of State, who I'eferred it for ratification to the Senate, where it appears to have encoun- tered objections, the nature of which has not been officially made known to Her Majesty's Government." Mr. Eeverdy Johnson, on the 9th of April, replied that " the design of the Conven- tion of 1853 Was to settle all claims which either Government, in behalf of its own citizens orsnbjeets, might have upon the other. * ' '' * At that time neither Gov- ernment, as such, made a demand upon the other. But that, as my proposition assumes, is not the case now. The Government of the United States believes that it has, in its own right, a claim upon the Gmernment of Her Majesty. In order, therefore, to a fall settlement of all existing claims, it is necessary that the one which my Government makes, and any corre- sponding claim wKieh Her Majesty's Government may have upon the United States, should be included within the Convention of the 14th January, 1869. My instructions, to which your Lordship refers, were to provide for the settlement of the claims mentioned in such insii'uetions by a Convention upon the model of the one for February, 1853. That I did not suggest in: the negotiations which led to the Convention of January the including within it any Gov'emmental claims was because my instructions only referred to the individual claints of citizens and subjects. I forbear to speculate as to the grounds upon which my instruc- tions were so limited:" ' Her Majesty's Government adhered to their decision not to entertain at all the sug- gestion thus made by Mr. Eeverdy Johnson ; and they intimated (in correction of an erroneous inference drawn by him from the concluding sentence of Lord Clarendon's 452 TREATY OF WASHINGTOJiT. letter of the 8tli April) that it was not to he supposed that this proposal wonld /be acceptable to Her Majesty's Government, even if it were made or repeated under posi- tive instructions from the United States Government, and with the prospect of termin- ating the entire controversy. (Lord Clarendon to Mr. Johnson, 15tft April, 1869 ; and Mr. Johnson's reply, l&th.April, 1869.) From this incident in the history of the negotiations the following conclusions of fact result: 1. That Mr. Eeverdy Johnson's instructions from his Government never extended to the assertion or settlement of any other claims than those of individual citizens of the United States against Great Britain. 2. That in suggesting (for the first time) the possible existence of public claims on behalf of his Government, he acted without authority. 3. That no such public claims as those of which the existence was suggested by him had ever been presented or notified; nor were, even then, in any manner defined. 4. That the public claims, of which the possible existence was so suggested, were not claims ''growing" or arising (simply) "out of the acts of" the "Alabama," or any other vessels; but claims "because of the consequences resulting from a premature recogni- tion of the Confederates during the war, and from the fitting out of the 'Alabama' and other similar vessels in Her Majesty's ports, and from their permitted entrance into other ports." 5. That the ,words "Alabama Claims'' (or any equivalent form of expression) were never made use of, nor was their use ever proposed to be varied or extended so as to comprehend this new class of (suggested) public claims. , i 6. That the idea of a one-sided reference of such supposed public claims of the Gov^ ernment of the United States only was never for a moment advanced or entertained, on the contrary, the essential condition of Mr. Johnson's proposal was that it should- also be open to Her Majesty to advance any public claims whatever which they might conceive themselves to have against the Government of the United States — a claim for injury to British interests, by the assertion and exercise of belligerent rights against British commerce, being expressly anticipated, as a probable or possible set-off to any claim on the part of the United States, founded upon the denial of a belligerent status, at any given period, to the Confederates. 7. That, although offered under these conditions, the proposal was simply, and with- out a discussion, declined by Her Majesty's Government. .^ t It was in Mr. Suumer's speech, at the meeting of the United States Senate, which refused to ratify the Convention of the 14th January, 1869, that the first conception of public claims, of the nature and magnitude of those now advanced in the '"Case" of the United States, was made known to the world. His argument on this head was thus summed up by Mr. Thornton, (19th April, 1869, to Lord Clarendon :) Your lordship will perceive that the sum of Mr. Sumner's assertions is, that England insulted the United States by the premature, unfriendly, and unnecessary Proclamation of the Queen, enjoining neutrality on Her Majesty's subjects; that she owes them an apology for this step; that she is responsible for the property destroyed by the 'Alabama' and other Confederate a'nisers, and even for the remote damage to American shipping interests, including the increase of the rate of insurance; thai the Confederates tvere so much assisted by being able to. get arms and ammunition from England, and so much encouraged by the Queen's Proclania-* tion, that the war lasted much longer than it imuld otherwise have done, and that we ouglit therefore to pay imaginary additional expenses imposed upon the United States by the prolongor tion of the war." Mr. Sumner himself did not affect to represent the latter portion, at all events, of his suggested demand as " growing out of the acts of" the "Alabama," or of any other particular vessels; and Mr. Thornton's comment upon the whole of it shows very clearly the impossibility of ascribing to the acts of any particular vessels alleged to have been fitted out from British ports, either the whole or any ascertainable part of the general losses sustained by American commerce during the war, or oven distinguishing between such losses of that kind as were real and those which were apparent only. So far no step was taken by the United States Government to adopt Mr. Sumner's views or to advauce claims corresponding to them. On the 10th of June, 1869, Mr, Motley renewed to Lord Clarendon the declaration of the wish of his Government " that existing differences between the two countries should be honorably settled, and that the international relations should be placed on a firm and satisfactory basis," which Lord Clarendon of course reciprocated. Tlien, after adverting to other subjects, he said that " the Claims Convention had been published prematurely, owing to some accident which he could not explain; and that consequently, long before it came under the notice of the Senate, it had been unfavorably received by all classes and parties in the United States. The time at which it was signed was thought most inopportune, as the late President and his Government were virtually out of office, and their successors could not be committed on this grave question. The Convention jwas further objected to because it embraced only the claims of individuals, and had no reference to those of the two Governments on each other ;" and, " lastly, that it settled no question and CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 453 laid down no principle. These were the chief reasons which had led to its rejection hy the Senate ;" and Mr. Motley added " that although they had not been at once and explicitly stated, no discourtesy to Her Majesty's Government was thereby intended." On the 25th of September, 1869, Mr. Fish revived the whole subject of the contro- versies between the two Governments within its widest range in a long and elaborate dispatch to Mr. Motley, in which he referred (among otherthings) to the responsibility of the British Government for (at least) " all the depredations committed by the 'Alabama ' " AS indisputable. He stated, toward the end, the President's concurrence with the Senate in disapproving' the Convention of the 14th January, 1869, thinking (in addi- tion to general reasons left to be inferred from the general arguments of the dispatch)' that " the provisions of the Convention were inadequate to provide reparation for the United States in the manner and to the degree to which he considers the United States entitled to redress." He added : " The President is not yet prepared to pronounce on the question of the indemnities which he thinlis due by Great Britain to individual citizens of the United States for the destruction of their property by rebel cruisers fitted out in the ports of Great Britain. Nor is he now prepared ta speak of the repara- tion whibli he thinlcs due iy the British Government for the larger account of the vast national ikjuries it has inflicted on the United States. Nor does he attempt now to measure the relative effect of the various causes of injury ; as, whether hy untimely recognition of belligerenoj/ ; hy suffering the fitting out of rebel cruisers ; or by the supply of ships, arms, and munitions of war to the Confederates ; or otherwise, in whatsoever manner. » » * AH these are subjects of future consideration, which, when the time for action shall come, the Pres- ident will consider with sincere and earnest desire that alldifierencesbetweenthe two nations may be adjusted amicably and compatibly with the honor of each, and to the futtire promotion of concord between them ; to which end he will spare no efforts within the range of his supreme duty to the rights and interests of the United States. * * * At the present stage of the controversy, the sole object of the President is to state the position and maintain the attitude of the United States in the various rela- tions and aspects of this grave controversy with Great Britain. It is the object of this paper (which you are at liberty to read to Lord Clarendon) to state calmly and dispassionately, with a more unmeasured freedom than might boused in one addressed directly to the Queen's Government, what this Government seriously considers the in- juries it has suffered. It is not written in the nature of a claim, for the United States' noio maike no demand against Her Majesty's Government on account of the injuries they feel they have sustained." ^ Lord Clarendon, understanding this dispatch as intended to revive, and to prepare the way for a new settlement of, the claims previously advanced, spolte of it in his answering dispatch to Mr. Thornton (November 6, 1869) as " a dispatch from Mr. Fish on the 'Alabama' claims." That it was not intended to extend, and that it had not the effect of extending, the signiiication of that term, as used in the previous correspond- ence, is plain, (1) from the fact that Mr. Fish expressly disclaimed for his dispatch the ofiioe or effect of making any new claim or demand ; (2) that it reserved for future consideration the question of reparation for the (supposed) " national inj uries " inflicted by the British Government on the United States ; and (3) that it "declined to measure , tlie relative effect of the various (alleged) causes of injury ;" the " suffering the fitting- *out of rebel Cruisers" being only one of three causes enumerated. Lord Clarendon 'siniply contented himself with replying that "Her Majesty's Government could not make any hew proposition, or run the risk of another nusuocessful negotiation, until they had information more clear than that which was contained in Mr. Fish's dispatch respecting the basis upon which the Government of the United States would be dis- posed to negotiate." But, in a paper of observations upon the arguments in this dispatch, which he at the same time (6th November, 1869) transmitted to Mr. Thorn- ton, to be communicated to Mr. Fish, he remarked, under the head of "Indirect injury to American commerce," " This allegation of national, indirect, or constructive claims loas first brought forward offidally by Mr. Beverdy Johnson, in his attempt to renew negotiations on the Chinese Convention in March last. Mr. Thornton has shown the difficulty there would be in computing the amount of the claim, even if it were acknowledged, in a dispatch in which he mentions the continual decrease of American tonnage. This is partly, no doubt, to be ascribed to the disturbance of commercial relations consequent on a long war, partly to the fact that many vessels were nominally transferred to British owners during the war to escape capture. * » * « i^ not, how- ever, a good deal of it to be attributed to the high American tariff, which makes the construction of vessels in American ports more expensive than ship-building in Eng- land, and has thereby thrown so large a proportion of the carrying trade into English hands ? There must be some saoh cause for it, or otherwise American shipping would have recovered its position since the war, instead of continuing to fall off." * * * * * And with regard to'"tfte claims for vast national injuries," 'he noticed that -Professor Woolsey, the eminen-t American jurist, had repudiated them as un- tenable, &o. This closes the narrative of the communications between the two Governments, an- 454 TREATY OF WASHINaTON. terior to those whicli liacl for their immecliate result the negotiiition of the Treaty of Washington. They show conclusively : (1) that, down to the 26th of January, 1871, (when Her Majesty's Goverument, through Sir E. Thornton, proposed to Mr. Fish the appointment of a Joint High Commission to settle the Fishery Question, and all other questions affecting " the relations of the United States toward Her Majesty's possessions in North America,") no actual claim had been formulated or notified on the part of the United States agaiust Her Majesty's Governmeut, except for the capture or destruction of property of individual citizens of the United States by the "Alabama," and other similar vessels; (2) that the Government of the United States had, in Mr. Fish's dispatch of the 25th of September, 1809, for the first time intimated to the Government of this country that they considered there might be grounds for some claims of a larger and more j)ublic nature, though they purposely abstained at that time from making them ; (3) that the grounds indicated, as those on which any such larger and more public claims might be made, were not limited to the acts of the Alabama and other similar vessels, or to any mere consequence of those acts; and (4) that the expression "fhe 'AlaJyama' claims" had always been nsed, in the correspondence between the two Governments, to describe the claims of American citizens on account of their own di- rect losses by the depredations of the Alabama " and other similar vessels ;" and had never been emi^loyed to describe, or as comprehending, any public or national claims whatever of the Goverument of the United States. It was under these circumstances that Mr. Fish, on the 30th of January, 1871, in-r formed Sir E. Thornton that the President thought " that the removal of the differences which arose during the rebellion in the United States, and which has existed since then, growing out of the acts committed iy the sevei'al vessels, tvMch had given rise to the claims generically Icnown as the 'Alahama' claims, would also be essential to the restoration of cordial and amicable relations between the two Governments." Sir E. Thornton re- plied (1st February, 1871) that he was authorized by Earl Granville to state that«"it would give Her Majesty's Goverument great satisfaction if the claims commonly Icnoion lij the name of the 'Alabama' claims were submitted to the consideration of the same High Commission, by which Her Majesty's Government had proposed-that the questions relating to British possessions in North America should be discussed, provided that:all other claims, loth of British suljects and citizens of the United States, arising out of acts committed during the recent civil war in this country, were similarly referred to the same Commission." Mr. Fish, in answer to this annduucement, on the 3d of Febrn^fy, 1871, after citing the exact terms of Sir E. Thornton's letter, expressed the satisfaction with which the President " had received the intelligence that Earl Granville had sm- thorized him to state that Her Majesty's Government had accepted the views of the United States Goverument as to the disposition to be made of the so-called 'Alaiarm' claims;" and that "if there be other and fuither claAms of British siibjects or of Amei-iem citizens growing out of acts committed during the recent civil war in this country, he assents to the propriety of their reference to the same High Commission." Mr. Fish, therefore, and Sir E. Thornton agreed in describing, by the several forms of expression, " the claims generically known as the 'Alabama' claims," " the claims commonly Icnown by the name of the 'Alabama' claims," "the 'Alabama' claims," SLai " the so-called 'Alabama' claims," one and the same subject-matter. What this was is proved, not only by the previous use of the same or similar terms, but also by the fact thatjdf ' these words had been now intended to include indefinite public or national claims, of the United States Government against Great Britain, and not merely those claims for direct losses which had been previously presented or notified, and any others ^usdem {leneris, it must of necessity have followed (according to the suggestions which had been made by Mr. Eeverdy Johnson, and afterward by Mr. Motley) that any counter claims which the Government of Great Britain might have thought fit to advance, on public or national grounds, against the Government of the United States, must have been in like manner provided fof But the only other claims provided for were those of subjects of Great Britain and citizens of the United States. In strict conformity with this view, Lord Granville, when enumerating in his instruc- tions to Her Majesty's High Commissioners (9th February, 1871) the principal sub- jects to which their attention would be directed, described these claims as " the claims on account of the Alabama, Shenandoah, and certain other cruisers of the so-styled Confederate States;" saying, "Under this head are comprised the claims against Great Britain for damages sustained by the depredations of the Alabama, Shenandoah, and Georgia, the vessels which were furnished on account of the Confederate States, and armed outside of British jurisdiction, and the Florida, which, though built in England, was armed and equipped in the port of Mobile." The same, or the equivalent words, therefore, as often as they are used in the Pro- tocols of the Commissioners and in the Treaty of Washington itself, ought, upon ordi- nary principles of construction, to be understood as bearing the same sense. And this seems to be made more clear by the exclusion from the reference of any claims ofthiS country or of the people of Canada on account of the proceedings of the Fenians in the United States. There might certainly have been national claims of Great Britain COEEESPONDENCE RESPECTING GENEVA AEBITEATION. 455 arising out of those proceediags, (in adclition to any particular losses by Canadian subjects,) wMoli could not possibly have been excluded on any just or intelligible prin- ciple, if indefinite claims for public or national losses had been intended to be left open to the Government of the United States. On a careful examination of the language of the Protocols and the Treaty, nothing is found at variance with this conclusion, while very much is found to confirm it. The 36th Protocol, drawn up after the Commissioners had agreed upon all the terms of the Treaty, for the purpose of recording (so far as they thought it necessary or de- sirable) the history of their proceedings, begins by stating the proceedings at their first conference, on the 8th March, 1871. On that occasion the American Commis- sioners spoke (1) of the feeling of the United States, "that they had sustained a great wrong, and that great injuries and losses were inflicted upon their commeriie and their material interests by the course and conduct of Great Britain during the recent rebellion in the United States ;" (2) of " the history of the Alabama and other cruisers, which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her Colonies, and of the operations of those vessels, as showing (A) ex- tensive direct losses in the capture and destrnction of a large numbtr of vessels toith their car- goes, and in llie heavy national expenditure in the •pursuit of the cruisers; and (B) indirect injury im the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the prolongation of the war, and in the addition of a la/i'ge sum to the cost of the war and the suppression of the rebellion ; and as also showing (C) that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and their. tenders." So far all is preamble, and as yet there is no mention ot claims. General injury to the commerce andmaterial interests of the United States, " by the course and conduct of Great Britain," direct losses by the captures of the ''Alabama" and similar cruisers, and also (an item now first added) by the national expenditure in their pursuit ; and indirect public injury, "shown by the history of those vessels and their operations," are all spokeo of; but the " liability," expressly inferred from the same " history " against Great Britain, is limited to " the acts of those vessels and their tenders." The American Commissioners then proceed to speak of " the claims for the loss and destruction, of private property which had thus far been presented," as amounting to about 14,000,000 dollars, without interest, " which amount was liable to be greatly increased by claims which had not yet been presented;" and, with respect to the new head of direct losses, now for the first time mentioned, they say that " the cost to which the Government had been put in pursuit of cruisers could easily be ascertained by certificates of Government accounting officers." Here the word " claims" is used with respect to direct losses only, as it had always been used before, but with notice that direct losses of the Government, in pursuit of the vessels referred to, are now meant to be included in that category, as well as the losses of private citizens. And then follow the words : " That, in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice, however, to the right of indemnification on their account, in the event of no such settlement being made." Here is a clear waiver of the (assumed) "right of indemnification" for indirect losses in the event of " an amicable settlement" being made. The meaning of the words " an amicable settlement" has been already considered in the First Part of this Memoran- dum. At present the question is as to the meaning of the words " the claims generi- cally known as the ' Alabama' claims." If no actual claim for these indirect losses had been previously made, it clearly was not made now by treating it as a reserved " right " which would or -might be insisted on in the event of no amicable settlement being arrived at. Still less could it, by means of any such reservation, be brought within the category of " claims" already " generically known as the ' Alabama' claims." The next step in the proceedings corroborates this view. For, after stating their desire for an expression of regret on the part of Her Majesty's Government, which they obtained, the American Commissioners then proposed " that the Joint High Com- missioners should agree upon a sum which should be paid by Great Britain to the United States, in satisfaction of all the claims, and the interest thereon." All the claims are here spoken of; but it can hardly be possible that, in this proposal, they meant to include indirect losses ; because " the right to indemnification" on that account was only to be asserted in the event of no amicable settlement being made ; nor were these indefinite claims such as, by any possibility, could be regarded as bearing interest. In the, later passages of this Protocol, which relate to the proceedings resulting in the reference to Arbitration, and in the agreement as to the three " Rules," no trace occurs of any recurrence to the reserved "right of indemnification," or to the subject of indirect losses. " The ' Alabama' claims" alone are spoken of. In the 1st Article of the Treaty itself, the words " generidally known," &c., so far as they differ from other forms of expression previously used in respect of the same sub- ject, differ only by defining that subject with greater accuracy, so as more pointedly to exclude indirect losses. " Generically " is an adverb of classification, with reference to the nature of the sub- 456 ' TREATY OF WASHINGTON. jeot-matter itself. Claims for direct losses, by tlie acts of a particular class of vessels, or by a definite expenditure for the prevention of these acts, are, in their nature, of the same category or genus ; and it is the very fact of their being capable of being Sireotly connected with the acts of those vessels, as an effect with its cause, which makes them so. Indirect public losses, to which many concurrent causes may have contributed (as, with respect to those now in question, is clearly demonstrated by Mr. Sumner's speech, and Mr. Thornton's observations upon it, and also by Lord Clarendon's memorandum of the 6th November, 1869,) are different in their kind, and open up much wider, aild wholly different, fields of inquiry. ' Tlie Vllth and Xth Articles of the Treaty appear also to be irreconcilable with any other view of the " Claims " referred. The Arbitrators are to " first determine, as to each vessel separately, whether Great Britain has, by any act or omission, failed to fulfill any of the duties," &c. ; and " shall certify the fact as to each of the said vessels." This in- quiry is addressed, and is limited, to certain imputed " acts or omissions " of this coun» try, not.as to any other matters, but as to each, separately, of certain vessels. The Arbitrators, if they should find " that Great Britain has failed to fulfill any duty or duties as aforesaid," have power to "award a sum in gross to ie paid by Great Britain to the United States /or all the claims referred." But the power of awarding a sum in gross cannot enlarge or alter the category of the claims referred, or the scope of the in- quiry ; the foundation of such an award must be some particular failure of duty, con- sidered by the Arbitrators to have been established against Great Britain, by some acts or omissions as to some particular vessels or vessel ; and the sum awarded can only be in respect of damages resulting from such failure of dnty, as to such particular ves- sels or vessel. If the Arbitrators should " find that Great Britain has failed to fulfill any duty or duties as aforesaid," but do not award a sum in gross, a Board of Assessors is then " to ascertain and determine what claims are valid and what amount or amounts shall be paid by Great Britain to the United States, on account of the lidMlity arising from such failure as to each vessel, according to the extent of such liability as decided by the Arbitrators." It seems impossible that power can have been given to the Arbi- trators to award a sum in gross for claims not severable as to each vessel, and which, therefore, the Assessors, when dealing with the case of each vessel in detail, could not entertain or allow. II. The second question, viz, what vessels are described by the words " the several vessels which have given rise to the claims generically known as the ' Alabama olaimsj'" admits of being more concisely treated. Until Mr. Seward's dispatch to Lord Stanley, of the 27th August, 1866, the "Alar bama," " Florida," " Georgia," and " Sh,enandoah " were the only particular vessels in respect of whose acts any claims had been made. With respect to more general com- plaints of the same character, Mr. Adams, in his letter to Lord Russell of the 7th April, 1863, referred only to vessels " supplied from the ports of the United Kingdom," addiug, " So far as I am aware, not a single vessel has been engaged in these depredations ex- cepting such as have been so furnished. Unless, indeed, I might except one or two passenger steamers belonging to persons in New York, forcibly taken possession of while at Charleston in the beginning of the war, feebly armed, and very quickly ren- dered useless for any aggressive purpose." In his letter of the 20th May, 1865, when recapitulating his former complaints, he mentioned under this head, only "the issue from British ports of a number of British vessels," by which a large amount of Ameri- can property had been destroyed ; the action of these British iuilt, manned, and armed ves- sels ; the ravages committed by armed steamers, ^iied ojrt /i-om the ports of Great Brit- ain ;" and " the issue of all the depredating vessels from British ports with British seamen, and with, in all respects iut the presence of a few men acting as officers, a purely British character." Mr. Seward, in his dispatch of the 27th August, 1866, (as has been already seen,) sppke of "depredations upon our commercial marine, committed by the 'Sumter,' the 'Alabama,' the ' Florida,' the 'Shenandoah,' and oth-er ships of war, which were iiiilt, manned; armed, equipped, and fitted out in British ports, and dispatched therefrom by or throughthe agency of British suhjects, and which were harbored, sheltered, provided, and furnished, as occasion re(iuired, during their devastating career, in ports of the realm, or in ports of British Colonies in nearly all parts of the globe." As the " Sumter" was (notoriously) not built, manned, armed, equipped, or fitted out in any British port, or dispatched therefrom by or through the agency of any British subjects, Lord Stanley thought that this was a casual and unintentional error, and pointed it out to Mr. Seward (through Sir F.'Bruce) as such ; especially as the " Georgia," in respect of which vessel particular claims were scheduled to Mr. Seward's dispatch, was uot named therein ; while no such claims were scheduled in respect of the "Sumti'r" or of any other ships, except the "Alabama," "Shenandoah," "Georgia," and " Florida." Mr. Seward, as has been already seen, justified himself (12th January/ 1867) as " substantially correct," on the ground that the " Sumter" had received certain hospitalities in the British ports of Trinidad and Gibraltar, and had been sold to British ■subjects at Gibraltar and afterward received at Liverpool. COREESPONDEIiFOE RESPECTING GENEVA ARBITRATION. 457 As this was the first occasion, so it was also the last, on which mention was made of any ship or ships, not alleged to have been fitted out, armed, equipped, or manned in any British port, hut which had merely been allowed to receive limited supplies of coal or other necessaries in British waters, as coming within the category of vessels whose acts could be made the foundation of claims against Great Britain. The words "the vessels which have given rise to the claims generically known as the Alabama claims" cannot possibly be extended to vessels of this character, unless it he on the ground of this one mention of the "Sumter" in the context which has been cited in these two letters of Mr. Seward. In the " Case," however, presented on the part of the American Government under the Treaty, damages are claimed in respect of five vessels ("Sumter," "Nashville," "Retribution," "Tallahassee," " Chickamauga,") which were in every sense American ; and which are not alleged to have been built, fitted out, armed, equipped, or manned in any part of the British dominions; and in the 7tli volume of the Appendix to that " Case," further claims of the like character appear to be made in respect of the acts of two other similar vessels, ("Boston" and "Sallie.") It may be here observed that, by the general list of claims filed in the State Depart- ment of the United States, besides these vessels, not less than eight other American ships ("Calhoun," "Echo," "Jeff Davis," "Lapwing," "Savannah," "St. Nicholas," " Winslow," " York,") in respect of whose acts no claim is now made against Her Majesty's Government, appear to have been also engaged in belligerent naval opera- tions on the part of the Confederate States, which resulted- in the destruction of ships and other property belonging to citizens of the United States. When Lord Stanley (24th May, 1867) spoke of " the proceedings of the ' Alabama ' and vessels of thai class," and (10th September, 1867) of " claims arising out of the depre- dations of the 'Alabama,'" and "of vessels of ihe like chc^racter;" when Mr. Eeverdy Johnson (25th March, 1869) spoke of the possible public claim of the United States Government, as resulting (^inter alia) "from the fitting out of the 'Alabama' and other similar vessels in Her Majesty's ports, and from tAeir permitted entrance into other ports;" when Mr. Fish (25th September, 1869) spoke of the destruction of American commerce "ly. rebel cruisers fitted out in the ports of Great Britain," and injury "by suffering the fitting out of rebel cruisers, or by tliesupply of ships, arms, and munitions of war to the Confederates ;" when Mr. Motley (23d October, 1869) spoke of " the destruction of American commerce by crms&rs of British origin carrying the insurgent flag ;" it is clear that they did not in- clude, or mean to include, as if belonging to one and the same category of vessels, ships alleged to be of British origin, and ships of American origin, with the fitting out or equipment of which British subjects had been in no way concerned. In Lord Granville's instructions to Her Majesty's High Commissioners, it is also plain that the former class of vessels alone is contemplated. In the narrative of the proceed- ings of the 8th March, 1871, contained in the 36th Protocol, it seems equally clear that the United States Commissioners had also the same class of vessels in view ; for they spoke of " the history of the Alabama and other cruisers which had been fitted out, or armedj or egiiApped, or which had received augmentation of force in Great Britain or in her colonies ;" and they expressed a hope "that the British Commissioners would be able to place upon record an expression of regret by Her Majesty's Government for the depredations com- mitted by the vessels whose acts were now under disctission." Her Majesty's Commissioners (on a later day) replied " that they were authorized to express, in a friendly spirit, the regret felt by Her Majesty's Government /or the escape, under whatever circumstances, of the 'Alabama' and other vessels from British, ports, and for the depredations committed by them;" which expression of regret was accepted by the American Commissioners as " very satisfactory." In the fifst Article of the Treaty itself, the expression of Her Majesty's regret, in these identical words, immediately precedes the agreement of reference by which the claims referred are described as " growing out of acts committed by the afoi'esaid vessels." The necessary conclusion appears to be that the vessels intended to be referred to in the Treaty were only such as could, in good faith, be alleged to have been fitted out, or armed, or equipped, or to have received an augmentation of force in some part of the British dominions — the three Rules in the Vlth Article of the Treaty being, of course, material to be regarded in determining all questions of fact in any case alleged to he of this nature. The "Sumter," "Nashville," and other ships above mentioned have never been alleged to come within any of the terms of this description, unless, indeed, it is now meant to be said that the permission to any Confederate vessel to obtain, in a British port, such limited supplies of coal as were permitted to both the belligerent parties by Her Majesty's regulations ought to he deemed an improper " augmentation of the force" of such vessel within the meaning of the second Rule. III. The solution of the third question, viz, what claims are described by the words " all the said claims, growing out of acts committed by the aforesaid vessels, and generically Tcnown as the Alabama claims," (being the words in which the subject-matter of the ref- erence to arbitration agreed upon is defined,) has been anticipated by the conclusions already arrived at. It may he added, however, that the words "growing out of acts committed 62/ the aforesaid vessels" cannot, without forcing them altogether beyond- 458 TREATY OP WASHINGTON. their fair and natural sense, be applied to claims for indirect lossea, not resulting from any particular acts committed hy any particular ship or ships, but alleged to result (so far as they may be referable at all to naval or maritime causes) from the very existence on the high seas of a naval force belonging to the Confederate States, and recognized by Great Britain and other neutral powers as having a belligerent character and bellig- erent rights. If the Confederate States had, in fact, procured all their cruisers from British sources, this criticism would still hold good ; much more when several (in fact a considerable majority in number) of the cruisers actually employed by them, and by which losses were inflicted on United States citizens, were otherwise procured. PART III. On the amount of the claims for indirect losses. " The claims as stated by the American Commissioners may be classified as follows : '' 1. The claims for direct losses growing out of the destruction of vessels and their cargoes by the insurgent cruisers. " 2. The national expenditures in the pursuit of those cruisers. " 3. The loss in the trajjsfer of the American commercial marine to the British flag. "4. The enhanced payments of insurance. " 5. The prolongation of the war and the addition of a large sum to the cost of the war and the suppression of the rebellion. " So far as these various losses and expenditures grew out of the acts committed by the several cruisers, the United States are entitled to ask compensation and remunera- tion therefor before this Tribunal." — (United States Case, p. 469.) Mr. Fish observes that "an extravagant measure of damages" has been supposed, not only by the British press, but also, " most unaccountably," by some of the states- men of this country, to be sought through the claim for coinpensatiou on account of indirect damages. It will, therefore, be well to present, from United States authority, some part of the evidence which, in the absence of explanation or retraction, has led to this conception. Undoubtedly the Case (p. 476) disclaims an accurate estimate'; but it supplies materials which cannot fail to suggest the appropriate conclusion'. They are as follows : From the 4th of July, 1863, Great Britain is declared to have been " the real author of the woes " of the American people, (p. 479.) From this time " the war was prolonged for the purpose " of maintaining offensive operations " through the cruisers," (ibid.) And the arbitrators are accordingly called upon "to determine whether Great Britain ought not in equity to re-imburse to the United States the ex- penses thereby entailed upon them," (ibid.) On all these points, the Case pro- ceeds to state, the evidence " will enable the Tribunal to ascertain and determine the amount." To this amount interest is to be added up to the day when the compensation is payable, within twelve months after the award, (p. 480.) The rate of interest in New York is 7 per cent., (ibid.;) and " the United States make a claim for interest at that rate" from July 1, 1863, "as the most equitable day." The interest, therefore, is to be charged at 7 per cent, for a period of from ten to eleven years. It may be presumed to be incapable of dispute that more than half the expenses of the war were incurred after the first of July, 1863. What was the sum total of thpse expenses ? Upon this point there is, in a form generally if not precisely appropriate, official evidence from America. In the Report of the Special Commissioner of the Revenue for 1869, (p. vi,) they are stated at 9,095,000,000 dollars, including 1,200,000,000 dollars for the suspension of industry. Of this amount 2,700,000,000 are set down to the Confederates. Thus it appears that the Case does not go beyond the truth (so far as this head of damage is concerned) in stating that the Arbitrators would find the materials sniii- cieutly supplied for estimating the amount which "in equity" Great Britain ought to ^ay. It may indeed be said that the amount, suggested by the passages and facts to which reference is made, forms an incredible demand. But, in perusing and examin- ing this Case, the business of Her Majesty's Government has been to deal, not with any abstract rule of credibility, but with actual, regular, and formal pleas, stated and lodged against Great Britain on behalf of one of the greatest nations of the earth. Is it, then, " most unaccountable," in view of the evidence as it stands, that the press and that statesmen of this country should have formed the idea that " an extravagant measure of damages" was sought by the Government of the United States ? CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 459 It appears from the dispatch of Mr. Fish that no such idea has ever heen entertained by that Government. Having this authentic assurance so supplied, it may be deemed little material to inquire whether on this important matter the language of the Case has be,en misunderstood by Her Majesty's Government, or whether it is now disavowed. If, however, it has been misconstrued, the misconstruction undoubtedly has not been confined to England, but has been largely shared by writers on the Continent of Europe. Were this Government Indeed prepared to acquiesce in the submission of these claims, it would still remain to ask in what way the Government of the United States , proposed to guard against the acceptance by the Arbitrators of those enormous estimates which, talien without authoritative comment, the language of the Case suggests. But it is scarcely necessary to observe that the question of more or less in this matter is entirely distinct from the question of principle on which the statements and arguments of Her Majesty's Government are founded. [Inolosure 3 in No. 13.1 General Schendk to Earl Granville. Legation op the United States, London, 2lst March, 1872. My Lord : At a very late hour last night I received your Lordship's note of the date of yesterday, informing me that you had laid before your colleagues the copy of Mr. Fish's dispatch to me of the STth ultimo, of which I furnished you a copy on the 14th instant. I have also received, at half past four o'clock to-day, a printed copy of a memoran- dum, which you refer to in the note as being inclosed, and which you request to have read and considered as part of that communication, being intended, as you inform me, to explain to the United States, more fully than can be done in the form of a letter, and as Her Majesty's Government is anxious to do, the considerations which caused them to hold the belief at the time of the ratification of the Treaty that a waiver had been made of the claims for indirect damages. Having informed me that Her Majesty's Government, recognizing with pleasure the assurance of the President that he sincerely desires to. promote a firm and abiding friendship between the two countries, and being animated by the same spirit, gladly avail themselves of the invitation which you say my Government appears to have given, that they should state the reasons which induce them to make the declaration contained in your note of the 3d ultimo, you add that those reasons were purposely omitted at that time in the hope of obtaining, without any controversial discussion, the assent thereto of the Government of the United States. Your Lordship then proceeds, in reply to Mr. Fish's note, to discuss the whole ques- tion of the right of the United States, under the provisions of the Treaty, to put for- ward in their Case presented at Geneva their claims for indirect losses and damages, and to state the grounds for your denial of such right and the arguments by which that denial is sought to be sustained. And your Lordship closes this fuU and long statement Of views and arguments by expressing the confident feeling of Her Majesty's Government that they have laid be- fore the President ample proof that the conclusion which was announced in your note of the 3d of February, and by which you think it is hardly necessary to say they ad- here, cannot be shaken. This conclusion I understand to be that " Her Majesty's Government hold that it is not within the province of the Tribunal of Arbitration at Geneva to decide upon the claims for indirect losses and injuries put forward by the United States." Almost every moment of available time since the receipt of your Lordship's note has been occupied with the copying of it, in order that I may be able to transmit it in time to overtake at Queenstown tlie mail steamer which leaves Liverpool to-day. I there- fore make my aclsnowledgment of the delivery of your communication brief, and hasten to forward it to my Government at home, that it may have, with the least possible delay, the attention and answer from there which it may be thought to require. I have the honor to be, very respectfully, your obedient servant, ROBT. C. SCHENCK. 460 TREATY OP "WASHINGTON. No. 14. , General Schenck to Mr. Fish. [Telegram.] London, 1st April, 1872. Have you any objection to British Government filing Counter Case, without prejudice to their position in regard to consequential damages? Eeceived at 9.40 a. m. SGHENOK. No. 15. Mr. Fish to General Schenck. [Telegram.] Washing-ton, April 2, 1872. We understand the British Government is bound to file Gounter-Case, and that their so doing will not prejudice any position they have taken, nor affect any position of this Government. The rights of both parties will be the same after filing as before. Is the inquiry made at their request? FISH. No. 16. Mr. Fish to General Schenck. No. 181.] Department of State, Washington, April IC, 1872. SiU: I have given very careful attention to the note of the 20th March, addressed to you by Earl Granville, professing to state the reasons ^^hich induced Her Majesty's Government to make the declara- tion contained in his previous note to you of 3d February, that, in the opinion of Her Majesty's Government, it is not within the province of the Tribunal of Arbitration at Geneva to decide upon the claims for indirect losses and injuries put forward in the Case of the United States. His Lordship declares this statement to be made upon the invitation which this Government appears to have given. I should regret that what was intended only as a courteous avoidance of the naked presenta- tion of a directly opposite opinion to that which had been expressed on behalf of the British Government, unsustained by any reasons, should have subjected His Lordship to the necessity of an elaborate reply. It was not the desire of this Government to invite any controversial dis- cussion, nor have they now any wish to enter upon or continue such dis- cussion. Some remarks, however, appear in the note of His Lordship which seem to require a reply. It opens with a seeming denial of the accuracy of my assertion that claims for indirect losses and injuries are not put forward for the iirst COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 461 time in the " Case" presented by this Government to the Tribunal at Geneva — that for years they have been promiaently and historically part of the "Alabama claims" — and that incidental or consequential damages were often menticned as included in the accountability. It cannot be supposed that His Lordship intends more than to say that the claims for indirect or national losses and injuries were not "formu- lated" by this Government, and the amount thereof set forth in detail and as a specific demand, for he admits that on the 2()th November, 1862, within a few weeks after the "Alabama" had set out on her career of pillage and destruction, Mr. Adams suggested the liability of Great Britain for-losses other than those of individual sufferers. In his note of that date to Lord Eussell, Mr. Adams stated that he was in- structed by his Government to "solicit redress for the national and private injuries aliftady thus sustained." On the 19th February, 1863, Mr. Seward instructed Mr. Adams that " this Government does not think itself bound in justice to relinquish its claims for redress for the iniuries which have resulted from the fitting out and dispatch of the Alabama in a British porV As the consequences of this fitting out began to develop themselves, and their effects in encouraging the rebellion became manifest, Mr. Adams, in an interview with Lord Eussell, indicated them (as described by the latter in a letter to Lord Lyons under date of 27th March, 1863) as "-a manifest conspiracy in this country (Great Britain) to produce a state of exasperation in America, and thus bring on a war with Great Britain, with a view to aid the Confederate cause." In a note dated April 7, 1865, addressed to Lord Eussell, Mr. Adams, after complaining of the hostile policy, pursuant to which the cruisers were fitted out, says, " That policy I trust I need not point out to your Lordship is substantially the destruction of the whole mercantile navigation belonging to the people of the United States.^' " It may thus be fairly assumed as true that Great Britain, as a national poicer, is, in point of fa^t, fast acquiring the entire maritime commerce of the United States." That Lord Eussell regarded this as the foundation of a claim for dam- ages for the transfer of the commercial marine of the United States to the flag of Great Britain is apparent, in his reply to Mr. Adams, under date of May 4, 1865, when he says : "I can never admit that the duties of Great Britain toward the United States are to be measured by the losses which the trade and commerce of the United States may have sustained." Again, on the 20th May, 1865, Mr. Adams, writing to Lord Eussell, distinctly names indirect or consequential losses. His language is, "that, in addition to this directmjnrj, the action of these British-built, manned, and armed vessels has had .the indirect effect of driving from the sea a large portion of the commercial marine of the United States, and to a corresponding extent enlarging that of Great Britain;" that "inju- ries thus received are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification." In the same note he says, " The very fact of the admitted rise in the rates of insurance on American ships only "brings us once more back to look at the original cause of all the trouble." It is difficult to imagine a more definite statement of a purpose to require indemnification. On the Mth Februarv, 1866, after the presentation of the above-recited complaints, Mr. Seward, writing to Mr. Adams, said : " There is not one member of this Government, and, so far as I know, not one citizen of the United States, who expects that this country will waive, in any 462 TEEATY OF WASHINGTON. case, the demand that we have heretofore made upon the British Gov- ernment for the redress of wrongs committed in violation of international law." And again, on the 2d May, 1867, Mr. Seward writes to Mr. Adams : "As the case now stands, the injuries by which the United States are aggrieved are not chiefly the actual losses sustained in the several depredations, but the first unfriendly or wrongful proceeding, of which they are but the consequences." His Lordship also admits the mention, by Mr. Eeverdy Johnson, in March, 1869, of a "claim for national losses," which Lord Clarendon, in a paper published in the British Parliamentary Papers, " JNorth Amer- ica, No. 1, 1870," page 18, defines " national indirect, or constructive claims." On 15th May, 1869, I instructed Mr. Motley that ftis Government, in "rejecting the recent Convention, abandons neither its own claims nox those of its citizens." Lord Clarendon, in a dispatch of June 10, 1869, to Mr. Thornton, men- tioned that Mr. Motley had assigned, among the causes which led to the rejection of the Johnston-Clarendon treaty, that the "Convention was objected to because it embraced only the claims of individuals, and had no reference to those of the two Governments on each other." On 25th September, 1869, writing to Mr. Motley, I said : "The num- ber of ships thus directly destroyed amounts to nearly two hundred,' and the value of the property destroyed to many millions. Indirectly the effect was to increase the rate of insurance in the United States, and to take away from the United States its immense foreign commerce, and to transfer this to the merchant-vessels of Great Britain." "We complain of the destruction of our merchant marine by British ships." "The President is not yet prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States." In the same instruction I also wrote what seems pertinent to the pres-, ent phase of the question between the two Governments: "When one power demands of another the redress of alleged wrongs, and the latter entertains the idea of arbitration as the means of settling the question, it seems irrational to insist that the arbitration shall be a qualified or limited one." Lord Clarendon wrote to Mr. Thornton, on ,6th IS'ovember, 1869j that he was officially imformed by Mr. Motley that while the President at that time abstained from pronouncing on the indemnities due for the destruction of private property, he also abstained from speaking "of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States." Lord Clarendon, in some "observations" on my note, (Blue Book, North America, No. 1, 1870, page 13 et seq.,) dwelt at length on my alle- gation of national or indirect injuries, and characterized them as '■'■claims,^'' and resisted them as such. And in an instruction to Mr, Thornton, of 12th January, 1870, he recognizes the paper as relating to the "Alabama claims." (Blue Book, North America, No. 1, 1870, page 20.) It cannot be denied that these public or national claims (now called "indirect") were prominently before the Senate of the United States when the Convention of 14th January, ]869, was under advisement in that body, nor that they were subsequently actively canvassed before COREESPONDEN-CE EESPECTING GENEVA AEBITEATION. 463 the people of both countries, and especially by the press of Great Britain. It is equally indisputable that in my note to Mr. Motley, of Septem- ber, 25, 1869, to which Lord Clarendon replied, there was presented the reparation which the. President thought "due by the British Gov- ernment for the vast national injuries it had inflicted on the United States." The 36th Protocol of the Joint High Commission shows that the indi- rect losses were distinctly presented to the notice of the British Oom- missioners in the very beginning of the negotiations on the subject, and that they remained unchallenged to the signing of the treaty. At every stage, therefore, of the proceedings, from November, 1863, when Mr. Adams "solicited redress for the national injuries sus- tained," to the date of the Treaty, this Government has kept before that of Great Britain her assertion of the liability of the latter for what are now termed the '■'■indirect injuries." The President now learns for the first time, and with surprise, that Her Majesty's Government accepted his suggestion that the proposed Commission should treat for " the removal of the differences which arose during the rebellion in the United States, and which have existed since then, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the ' Alabama claims,' " in the full confidence that no claim would be made by the United States for the national losses which had been continuously presented. It is not to be denied that " differences" had arisen between the two Governments respecting these claims, and the Treaty attests that the two Governments were desirous to provide for amicable settlement of all causes of difference, and for that purpose appointed their respective Plenipotentiaries. It is thus declared in the outset that the agreements which are about to be formulated are not intended to be an " amicable settlement," but are intended, on the contrary, " to provide for a speedy settlement." The subject of the submission in a solemn Treaty will not be narrower than the declared object sought to be accomplished in the reference, and that object was declared to be the removal of all com- plaints and claims. The Treaty also attests that the differences which had arisen, groicing out of the acts committed by the several vessels which had given rise to the claims generically known as the Alabama claims, still exist, and that in order to remove and adjust all complaints and claims, " all the claims groicing out of the acts committed by the aforesaid vessels, and generically known as the Alabama claims, shall be referred to a Tribunal of Arbi- tration." You can bear witness that not even an intimation of the character now put forward by Earl Granville was made at any time during the deliberations of the Joint High Commission. If Her Majesty's Commissioners were appointed, entered upon, and continued the negotiations with this Government under instructions and with the conviction that the correspondence between Sir Edward Thornton and myself did not cover, and was not intended to cover, " as a subject of negotiation, any claim for indirect or national losses," the withholding of such instructions, and tbe abstaining from the expres- sion of such conviction on their part, was most unfortunate ; and the absence of any dissent or remonstrance against this class of the claims, either when first formally presented to the Commissioners, or during the whole negotiation, or in the Protocols, is most remarkable. These claims were presented to the British Commissioners as solemnly, 464 TREATY OF WASHINGTON. and witli more definiteness of specification, than were presented by them to the American Commissioners the claims for alleged injuries which the people of Canada were said to have suffered from what was known as the Fenian raids; yet, while the American Commissioners formally objected to the claimsfor the Fenian raids, as not embraced iu the scope of the correspondence which led to the formation of the Com- mission, and recorded on the Protocols their unwillingness to enter upon the consideration, each time that they were referred to, the British Com- missioners, from the first to the last, took no exception and recorded no objection to the presentation made by the American Commissioners of the claims generically known as the Alabama claims, which stand in the Protocol as a ^^ genus" or class of claims, comprehending several species, and among them enumerating specifically the claims for indirect losses and injuries. The positive exclusion by the Protocol of one class of claims ndvanced would seem to be conclusive of the non exclusion of the other class ad- vanced with greater definiteness and precision, but with respect to which no exceptiou was taken, and no dissent recorded. It is difficult to reconcile the elaborate line of argument put forward by Earl Granville to show a waiver of claims for indirect losses, with the idea that at the outset of the negotiations Her Majesty's Govern- ment did not consider the matter of public or national injuries as the basis of an outstanding claim against Great Britain on the part of the United States. If these claims had (as Lord Granville's note implies, even if it does not assert) no existence in fact, and had never been "notified" or pre- sented, and were not within the jurisdiction of the Joint High Commis- sion, why is so much stress laid upon their assumed relinquishment? If, on the other hand, they had existence in fact, if they had (as the references which I have made to a correspondence extending over a long series of years establish, I think, beyond the possibility of doubt) been frequently and persistently presented and notified to the British Government, why is not their positive exclusion from the reference to the arbitration shown? Why should an important class of claims, measured in their possibilities, according to the estimate of the British press, by fabulous amounts, be left to an inferential exclusion ? What interest, upon Lord Granville's theory, could Great Britain have in the proposed abandonment of such claims, or why offer any consid- eration therefor 1 How can Her Majesty's Government contend, at the same moment, that the preliminary correspondence excluded the indirect or national losses, and that the possibility of admitting such claims as a subject of negotiation had never been entertained by Great Britain, and on the other hand that they offered and considered the " amicable settlement" of the Treaty, with its expressions and its recognition of certain rules, as the consideration and the price paid for a waiver of those claims by the United States? 1 should not feel justified in referring to the expressions used by Earl Granville and other eminent members of the British Parliament in their legislative capacities, but for his own reference thereto, and for the responsibility to which His Lordship attempts to hold you for your pres- ence at one of their sessions, and to which I shall again refer. But the reference made by Earl Granville to the debate in the House of Lords on the 12th of June, and his own declaration on that occasion, that "they (the indirect claims) entirely disappear," strengthens the COERESPONDENCE RESPECTING GENEVA ARBITRATION. 465 position of this Government that they had been presented and were recognized as part of the claims of the United States. A disappearance certainly implies a previous appearance. ; Lord Cairns, long accustomed to close judicial investigation and the critical examination of statutes and of treaties, did not agree to the prdposition that there had been a relinquishment of the claims. He declared that there could not be found "one single word * * which would prevent such claims being put in and taking their chance tinder the Treaty." If, therefore, you were present through the whole of the debate, you heard advanced in the House of Lords as well the opinion held by the United States as that now put forward in behalf of Great Britain. It is true that Mr. Adams did not "define or formulate" claims for national losses. He did, however, "notify" them to Her Majesty's Government. During the war these claims were continually arising and increasing, and could not then be "defined," and the time for "formu- lating" them would not arise until a willingness to enter upon their con- sideration arose. It is to be remembered that in the spring of 1863 Her Majesty's Gov- ■ernment exhibited some impatience when Mr. Adams communicated losses, and claims of indemnflcation therefor, and Lord Eussell, under date of 9th March of that year, wrote to Mr. Adams that " Her Majes- ■ ty's Government entirely disclaim all responsibility for any acts of the Alabama, and they hoped that they had already made this decision on their part plain to the Government of the United States." In July, 1863, Lord Eussell referred Mr. Adams to his note of 9th March, and repeated the disclaimer of all liability ; and on the 14th Sep- tember, in still more marked language, he expressed the hope " that Mr. Adams may not be instructed again to pat forward claims which Her Majesty's Government cannot admit to be founded on any grounds of law or justice." Lord Kussell's replies to Mr. Adams aiford the answer to Lord Granville's remark that " no claims (except direct claims) were ever defined or formulated." But although the United States, under these circumstances, could not consider that hour as the most favorable to a calm examination of the facts or princij)les involved in cases like those in question, and notwith- standing these admonitions, it became imperative on Mr. Adams still to present complaints. On 30th December, 1862, he had complained of acts with the intent to " procrastinate the war." On March M, 1863, he wrote to Lord Eussell that " the war had been continued and sustained by the insurgents for many months past mainly by the co-operation and assistance obtained from British subjects in Her Majesty's kingdom and dependencies." He repeats a similar com- plaint on 27th March, and again on 28th April, coupled with the sug- gestion of the responsibility attending those who " furnish the means of protracting the struggle." At no time during the occurrence of the events which gave rise to the differences between the two Governments did the United States fail to present ample and frequent notice of the nature of the indirect in- juries, or of their inclusion in the accountability of Great Britain. Lord Granville admits that Mr. Johnson proposed the national claims in March, 1869. I mentioned them in my instructions to Mr. Motley, in May, 1869, and again in that of September of that year. Although I made no claim or demand for either direct or indirect injuries, I did present the vast national injuries, so that Lord Clarendon, in his reply, 30 A— n 466 TEEATY OF AVASHINGTON. manifested no difficulty in discerning that the United States did expect^ and would demand, the consideration of national, indirect, or conse^ quential losses. I can therefore have no doubt whatever that the assertion in my in- struction to you of 27th February, commented upon by Lord G-ranville,, does " accurately represent the facts as they are shown in the corre- spondence between the two Governments." Earl Granville endeavors to limit the nature and extent of the claims, • by an argument based upon the "expression" the " Alabama claims,'' , which (he says) first occurs in a letter which he designates. It may be true that this " expression" appeared for the first time, in the official correspondence, in the letter and at the date indicated ; but His Lord- ship overlooks the fact that in this letter the language used is " tlpe so- called Alabama claims," showing evidently the adoption, for conven- ience, of a then familiar term in common use, designating by a short generic name the whole class and variety of claims, for the various- injuries of which the United States had, at different times, made com- plaint. The question, however, is not what was understood by the expres- sion "Alabama claims," in 1867, but what the same expression implied iu 1871, when introduced into the Treaty. It might not be difficult to show that the expression had in 1867 acquired a definite sense- far more comprehensive than that to which Earl Granville desires tO' restrict it. It is impossible to deny that in 1871 it was as comprehensive iu signification as the United States claim it to have been. The official correspondence of this Government, which was published,, and is within the knowledge of Her Majesty's Government, included the indirect inj uries under the expression "the Alabama claims." They were prominently put forward in the debates and the public discussions on the rejection of the Jobnson-Clareudon treaty. The American press abounded in articles setting them forth as part of the "Alabama claims." The President enumerated them in his annual message to Congress,, in December, 1869. The British press, in the summer of 1869, and subsequently, discussed! most earnestly the indirect losses under the title of "Alabama claims."' Continental jurists and publicists discussed the national claims on account of the prolongation of the war under the head of " Exclama- tions" having " qu'un rapport indM-ect, et nuUement un rapport dir«c< avec les depredations r^ellement commises par leg croiseurs." In the year 1870, Professor Mountague Bernard, subsequently one of the Commissioners on the part of Her Majesty, and whose name is- signed to the Treaty, published a very able but intensely one-sided and. partial defense of the British Government, under the title of '^A Histori- cal Account of the Neutrality of Great Britain during the American Civil War." The XIV th chapter of this work, as appears in the table of con- tents, is entitled the "Alabama claims." Under this head he presents- the demand made by the United States for redress for " the national as- well as the private injuries." Professor Bernard knew the extent of our complaints and of pur demands. In this work he summarizes an instruction from this Department to the Minister of this country in Great Britain as presenting "the opinion qf this Government" that the conduct of England " had been a virtual g.,ct of war." He says, " The estimate which the American Gpverument has thought fit to adopt Of its own claims * * * is not favorable to a settlement;" that among the reasons for the rejection of ttje Convention of January ' 14, 1^69, was the fact that it embraced only the claims of individuals,, CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 467 aud had no reference to those of the two Governments on each other. He sots forth that the President assigned, among the reasons for his dis- approval of that Convention, that "its provisions were inadequate to provide reparation for the United States in the manner and to the degree to which he considers the United States entitled to redress," and that the President farther declared that he was not then (1869) " pre- pared to speak of the reparation which he thinks due by the British Grovernment for the larger account of the vast national injuries it has inflicted on the United States." And, further, that this Government held that " all these are subjects for future consideration, which, when the time for action shall come, the President will consider with sincere and earnest desire that all, differences between the two nations may be adjusted amicably and compatibly with the honor of each and to the promotion of future concord between them." With this knowledge of the demand for " national" redress; that the American opinion regarded the conduct of Great Britain as " a virtual act of war ;" with the expressed opinion that the American estimate of its claims was extravagant ; with the knowledge that a previous Con- vention had recently been rejected, because, among other reasons, "it embraced only the claims of individuals, and had no reference to those of the Government ; that the President expected reparation for the vast national injuries'' which Great Britain had inflicted on the United States, and that he " held all these subjects for future consideration when the time for action shall come ;" when "the time for action" did come, Professor Bernard, bringing this knowledge, appeared as one of Her Majesty's Commissioners to treat on these very subjects. It would be doing great injustice to the other eminent and distin- guished statesmen and diplomatists who were his associates on the Brit- ish side of the Commission, to entertain the belief that they brought less knowledge on these points than was held by Professor Bernard. I hold that enough has been shown to establish that the British Com- missioners who negotiated the Treaty did not enter upon the inpportant duty committed to them in ignorance of the nature or of the extent of the claims which the American Government intended to present and to have settled. Earl Granville's effort to limit and confine the meaning of the expres- sion " the Alabama claims" might induce one who had not the text of the Treaty at hand to suppose that the reference to the Tribunal of Arbitration was limited by the restricted meaning which he attempts to give to the phrase "Alabama claims." But the words of the Treaty impose no such limitation ; they are that, " Whereas differences have arisen between the Government of the United States and the Gov- ernment of Her Britannic Majesty, cind still exist, growing out of the acts committed by the several vessels, which have given rise to the claims (/«wenca% known as the 'Alabama claims.' Kow, in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims which are not admitted by Her Majesty's Government, the High Contracting Parties agree that all the said claims growing out of the acts committed by the aforesaid vessels, and generically known as the 'Alabama claims,' be referred," &c. All the claims growing out of the acts committed, &c., are the subject of reference. « That which grows out of an act 18 not the act itself; it is something consequent upon or incident to the act — the result of the act; and whether the claims to which Her Majesty's Government now takes ex- 468 TREATY OF WASHINGTON. ception be the results of the acts committed by the vessels is, in the opinion of this Government, for the decision of the Arbitrators. After the positive declaration of Earl Granville that it " never could have been expected" that Her Majesty's Government would accept the proposition of payment of a gross sum iu satisfaction of all our claims, it is apparent that an exposition, at this time, of the reasons which led the President to hope that the amicable settlement which he proposed, coupled with the suggestion of large pecuniary concessions ou our part, would be made, will not tend to remove the differences now existing between the two Governments respecting the jurisdiction of the Geneva Tribunal. I as deeply regret that Her Majesty's Government cannot understand upon what that hope was founded as I deplore what now appears to have been the predetermination of Her Majesty's Government to reject every proposal which involved an admission of any liability on the part of Great Britain. Another proposal, having no similitude to the previous one submitted by us, was made by Her Majesty's Commissioners. They accepted, with- out objection, the American statement of the subject-matter in dispute, as it was made, and they proposed, instead of the '' amicable settlement'' offered by the American Commissioners, " a mode of settlement" by arbi- tration, a litigation, a lawsuit in which Great Britain should deny all lia- bility to the United States for all the injuries complained of. After sundry modifications, their proposal was accepted by the United States, who were thus compelled to bring before the Tribunal the same presentment of their losses which they had laid before Her Majesty's Commission. The subject-matter of the submission made by the American " Case" to the Geneva Tribunal differs in no particular from that which was accepted as the statement of the American claims, without objection on the part of the British members of the Joint High Commission. The President is now, for the first time, authentically informed that a waiver by this Government of the claims for indirect losses which were formally presented was, in the opinion of Her Majesty's Govern- ment, also contained in this second proposal, was a necessary condition of the success of the negotiation, and that " it was in the full belief that this waiver had been made that the British Government ratified the Treaty." Such a relinquishment of a part of the claims of this Government is now made by Earl Granville the pivot and real issue of the negotiation. He appears to imply that the price paid by Her Majes- ty's Government to obtain that waiver was the concession referred to in His Lordship's note, and which, he says, would not have been expected by this Government " if the United States were still to be at liberty to insist upon all the extreme demands which they had at any time sug- gested or brought forward." Here, again, is a clear intimation that Her Majesty's Government were not in ignorance of the character of our demands, but that they were well "fcwown," and that the consideration to be paid for their waiver (whether real or imaginary) had been deliberately determined. Is it not surprising that such "extreme demands" should be waived on the one hand, and such "concessions" made on the other, without a word of reference or suggestion that the one was conditioned on the other? You can bear witness that at no time during the deliberations of the Joint High Commission was such an idea put forward by Her Majesty's Commissioners. The Protocols are utterly silent on the subject. CORRESPONDENCE RESPECTING UENEVA ARBITRATION. 469 That no such relinquishment was incorporated into the text of the Treaty is clear enough. Why not, if thus deemed at the time, by Her Majesty's Government, the hinge and essential part of the Treaty ? What are termed the " concessions " on the part of Great Britain ap- pear in the Treaty. If the relinquishment by the United States of a part of their claim was the equivalent therefor, -why is not that set forth? Throughout the Treaty are to be found reciprocal grants or concessions, each accompanied by its reciprocal equivalent. How could it happen that so important a feature of the negotiation as this alleged waiver is now represented to be was left to inference, or to argument from intentions never expressed to the Commission or the Government of the United States until after the Treaty was signed 1 The amplitude and the comprehensive force of the first article (or the granting clause) of the Treaty did not escape the critical attention of Her Majesty's Commissioners ; but was any effort made to limit or reduce the scope of the submission or to exclude the indirect claims ? Tou were informed in my instruction of February 27 that this Gov- ernment does not consider the Treaty as of itself a settlement, but as an agreement as to the mode of reaching a settlement. To that opinion the President adheres. He cannot admit that the treaty provision for a settlement is in substance or legal effect the same as the " amicable settlement" spoken of in the conference held on the 8th of March, as is set forth in the Protocol. The differences between the two stand out clear and broad. One would have closed up, at once and forever, the long-standing controversy ; the other makes necessary the interposition of friendly Governments, a prolonged, disagreeable, and expensive liti- gation with a powerful nation, carried on at a great distance from the seat of this Government, and under great disadvantages ; and, more than aill, it compels the re-appearance of events and of facts, for the keeping of which in lifeless obscurity the United States were willing to sacrifice much, as they indicated in their proifer to accept a gross sum in satis- faction of all claims. The United States can assent to no line of argument which endeavors to transfer the waiver of claims for indirect injuries (implied from their withholding the estimate of the amount of such claims) from the rejected proposal of the American (Commissioners for a settlement, " &,'l'amiable," by the Joint High Commission, and to incorporate it "sub silentio" in tne arbitration proposed by the British Commissioners. The offer of this Government to withhold any part of its demand expired and ceased to exist when the acceptance of the proposal which contained the offer was refused. It was never offered except in connection with the pro- posal that the Joint High Commission should agree upon a gross sum to be paid in satisfaction of all the claims, and then it was repelled. It was never again suggested from any quarter. It is impossible for Her Majesty's Government to fix upon a moment of time when there was an agreement of the contracting parties respecting such a waiver as that to which Earl Granville refers. To the suggestion of doubt contained in the note of Lord Granville, whether "it would be advantageous to either country" to treat claims of the nature of those now under discussion " as proper subjects of in- ternational arbitration," I can only reply that, for all practical purposes, argument upon .this question is suspended, inasmuch as, in our judg- ment, Great Britain and the United States have bound themselves . respectively by the Treaty to make such submission. The first Article of that solemn instrument recites and declares that " all the said claims growing out of acts committed by the aforesaid ves- 470 TREATY OF WASHINGTON. sels, and generically known as the 'Alabama claims/ shall be referred to a Tribunal of Arbitration." Earl Granville admits that the foregoing are " the words in which the subject-matter of the reference to arbitra- tion agreed upon is defined." If the "Case" of the United States, as presented at Geneva, contain claims not " growing out of acts committed" by the aiforesaid vessels, then such cla,ims are not within the reference, and must be so adjudged. In like manner, if any of the claims set forth in the American Case were not, at the date of the correspondence hetween Sir Edward Thornton and myself, (in January and JPebruary, 1871,) " generically known" as part of the Alabama claims, they are not within the jurisdiction of the Tri- bunal, and must be so adjudged. The President admits, unreservedly, that every item of the demand presented at Geneva must, within the meaning of the Treaty, be a " claim ;" that it must be one of the claims " generically known as the Alabama claims," and that it must "grow out of" the acts committed by the vessels which have given rise to the claims thus generically known. "Which of the claims presented by the United States at Geneva an- swers these requirements, and is well founded according to the true in- tent and meaning of the Treaty, is not to be determined by either party litigant, but is a question for the Tribunal to decide. I have already referred to the comprehensiveness which the expression "Alabama claims" had acquired when it was used in the correspondence, and was incorporated in the Treaty in 1871. Lord Granville says : " The word generically naturally signifies that all the claims intended were ejusdem generis.^' His argument would require them to be ejusdem speciei. The word was designedly used to embrace a " genus" — a class of claims divided iuto several species. " Genus est id, quod, sui similes communione quadam specie autem differentes, duas aut plures complec- titur parties." The direct losses from destruction of property are of one species ; they differ in dates, localities, and amounts ; they do not differ in char- acter or in "species." Eeferring to my remark ia the note to you of 27th February, that the indirect injuries are covered by one of the alternatives of the Treaty,. Earl Granville does not perceive what "alternative" in the Treaty covers these claims. This Government is of the opinion that thcy are covered by the alternative power given to the Tribunal of Arbitration, of awarding a sum in gross, in case it finds that Great Britain has failed to fulfill any duty, or of remitting to a Board of Assessors the determination of the validity of claims presented to them, and the amounts to be paid. By the Article YII, "in case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it think 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." If Great Britain be found by the Tribunal to have failed of any of its duties, it is clearly within the power of the Tribunal, in its estimate of the sum to be awarded, to consider all the claims referred to it, whether they be for direct or for indirect injuries ; there is no limitation to their discretion and no'restriction to any class or description of claims. The United States are "prepared to accept the award, whether favor- able or unfavorable to their views." They are confident " that it shall be just." -COEKESPONDENCE RESPECTING GENEVA ARBITRATION. 471 Earl Granville refers to the allusion made in my instruction to you of 27th February, to the presentation by Her Majesty's Agent to the Claims Commission now sitting in this city of a claim for a part of the Confederate cotton loan, the express exclusion of which from the con- sideration of the Commission his ^jordship admits had been mutually agreed upon in the negotiations which preceded the appointment of the High Commissioners, and was provided for by the wording of the Treaty. He thinks, however, that there is no analogy between the proceedings before the Washington Commission and those before the Geneva Tribunal ; such, at least, appears to be the inference to which his argu- ment is intended to lead. He cites from Article XIV the power given to the Claims Commis- isioners '^ to decide in each case whether any claim has or has not been duly made, preferred, and laid before them, either wholly or to any ex- tent, according to the true intent and meaning of the Treaty," and he a,dds that " no similar words" are used as to the powers of the Geneva Tribunal. It is true that "no similar words" are used, but his Lordship has over- looked the much broader and more comprehensive powers given to the Geneva Arbitrators by the words in Article II authorizing them " to examine and decide all questions that shall be laid before them on the part of the Governments of the Unitied States and of Her Britannic Majesty, respectively." These grants of power are to be taken in connection with the sabject- matter referred. The subject-matter of the reference to the Washington Commission is the claims for alleged wrongful acts by either Government upon the persons or property of individuals or of corporations, citizens or sub- jects of the other Government. Articles XII and XIV prescribe certain requirements as to the man- ner, the channel, and the time of presentation of the claims to be exam- ined. The words "made, prepared, and laid before" have no possible refer- ence to the nature, the character, or the ground-work of the claim, and can be construed only as applying to each claim, which is a proper sub- ject of reference, the test of the requirements of the Treaty, with respect to the manner, the channel, and the time of its being brought before the Commission. The subject-matter referred to the Arbitrators at Geneva is " all the claims growing out of acts committed by the vessels which have given rise to the claims generically known as ' the Alabama claims,' in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims." ^ In connection with such claims, and with the purpose expressed in the Treaty, the Arbitrators have the broad grant of power to " examine and decide all questions that shall be laid before them on the part of" ■either Government. If Lord Granville can find in the words he has quoted power in the Washington Commission to determine whether or not a claim presented is within its jurisdiction, it will be difftcult to deny the same power to a Tribunal. to which the more comprehensive grant is m'ade in the words of the Article II. The allusion in my instruction of 27th February to the Confederate .cotton loan was to the fact that a claim, one of a class for whose exclii- 472' TREATY OF WASHINGTON. sion his Lordship admits that expressions had been used in the negotia- tions which preceded the appointment of the High Commission, and were also used in the -Treaty, was presented by Her Majesty's Uorern- ment, (for by the Treaty a claim can only be laid before the Commission on the part of the GoVernment,) and that, when the United States remonstrated and requested the British Government to withdraw the claim, their remonstrance was unheeded, and the claim was pressed to- argument ; that the United States demurred before the Commission to its jurisdiction, and the decision of the Commission disposed of what might have been a question of embarrassment. The claim was put forward as a test case, and was one of a class involving upwards of fifty millions of dollars. My allusion to it was not in the nature of a complaint of its presenta- tion. Earl Granville has kindly furnished certain dates. From his note we find that it was on the 21st November that he learned that the United States remon strated against the presentation of this class of claims ; that prior to the 6th December he had ascertained from Sir Edward Thorn- ton (who it is known had left England on his return to the United States as early as the 28th day of November) that claims of this class were intended to be excluded, and that the Treaty contained words inserted for that object; that the remonstrance and request of the United States were not considered by Her Majesty's Government until the ilth of Decem- ber ; that a decision thereon was not made until the 14th, (on which day, I may add, the Agent and Counsel of the British Government, brought the case to trial in Washington,) and that the announcement of the decision of Her Majesty's Government was not made to you until the 16th December, two days after the case had been adjudged. These dates illustrate my allusion to this case. The United States- calmly submitted to the Commission the decision of its jurisdiction over a claim involving in its principle the question of liability for many millions of dollars, which, it is admitted, had been expressly agreed to be withheld from the province of the Commission, and thereby avoided jeoparding the Treaty, and the serious embarrassment which might have resulted from their undertaking to become the judges in their own behalf. I cannot pass over without notice the allusion made by Earl Gran- ville to your presence in the House of Lords on the occasion of the debate of the 12th of June last, and the fact that you did not at any time challenge either of the conflicting interpretations of the Treaty expressed on that occasion. I may add that similar reflections upon the conduct of this Government in that relation, uttered by prominent statesmen and newspapers in Great Britain, have been made public, and thus brought to my notice. To all of these it is sufficient to say that the President does not hold it as any part of his duty to interfere with the differences in the Par-, liament, or the public press of Great Britain, respecting the true con- struction of the Treaty. The utterances in Parliament are privileged ;; the discussion in that high body is looked upon by us as a domestic one,, of which this Government has no proper cognizance. If it is bound to take notice, it has the right to remonstrate. To concede either to a foreign State would be, on the part of a Par- liamentary Government, the abandonment of the independence which is its foundation and its great security and pride. Had you interfered, therefore, either to remonstrate or to demand explanation, you would have exposed yourself and your Government to the very just rebuke which the United States have had occasion to. COEEESPONDENCE RESPECTING GENEVA AEBITEATION. 4:1^' administer to diplomatic agents of foreign Governments^ who, in igno- rance or in disregard of the fundamental principles of a Constitutional Government with an independent legislature, have asked explanations from this Government concerning the debate? and proceedings of Con- gress, or of the communications by the President to that body. Ton had a right to assume that if Her Majesty's Government desired any official information from you or your Government respecting the Treaty, or desired to convey any information to you or to your Govern- ment, they would signify as much in the usual forms of diplomatic inter- course, as was done by Lord Granville in his note to you of February 3. Certain it is that it would have been in violation of recognized diplo- matic proprieties had you, on the occasion referred to, taken sides with either of the opposing views of the Treaty uttered on that occasion in Parliament. Further than this, it appears to me that the principles of English and American law (and they are substantially the same) regarding the construction of statutes and of treaties and of written instruments generally would preclude the seeking of evidence of intent outside the instrument itself. It might be a painful trial on which to enter, in seeking the opinions and recollections of parties, to bring into conflict the differing expectations of those who were engaged in the negotiation of anjj^trument. While the United States have nothing to fear from departing from the eminently just rule of law to which allusion has been made, it abstains from such departure. Very much of the matter so elaborately and ingeniously presented in the memoranda attached to the note of Earl Granville could be fitly and appropriately addressed by the British Government to the Tribunal which is to pass upon the points presented therein. It would require amplification, if not correction of statement, to make it present all the facts essential to a correct judgment, and might require a reply before that Tribunal. It would certainly require explanation as to many of its presentations, and its logic "would be denied ; but it does not seem to require a reply from me in the form of diplomatic correspondence. As to what is contained in Part III of that Memorandum, I repeat in substance what I mentioned in my note to you on this subject, of 27th February, that the indirect losses of this Government by reason of the. inculpated cruisers are set forth in the American " Case" as they were, submitted to the Joint High Commission in the first discussion of the claims on March 8, and stand in the Protocol approved May 4. They were presented at Geneva, not as claims for which a specific demand was. made, but as losses and injuries consequent upon the acts complained, of, and necessarily to be taken into equitable consideration in a final settlement and adjudication of all the differences submitted to the Tri- bunal. The decision of what is equitable in the premises, the United. States, sincerely and without reservation, surrender to the arbitrament designated by the Treaty. What the rights, duties, and true interests of both the contending, nations, and of all nations, demand shall be the extent and the measure of liability and damages under the Treaty, is a matter for the supreme determination of the Tribunal established thereby. Should that august Tribunal decide that a State is not liable for the. indirect or consequential results of an accidental or unintentional viola- tion of its neutral obligations, the United States will unhesitatingly accept the decision. Should it, on the other hand, decide that Great Britain is liable to this. 474 TREATY OF WASHINGTON. Government for suck consequential results, they have that full faith iu British observance of its engagements to expect a compliance with the judgment of the Tribunal which a solemn Treaty between the two Pow- ers has created in order to remove and adjust all complaints and claims on the part of the United States. To the judgment of the Tribunal when pronounced the United States will, as they have pledged their faith, implicitly bow. They confidently •expect the same submission on the part of the great nation with which 4;hey entered into such solemn obligations. I am, &c., HAMILTOl^r FISH. No. 17. General Schenck to Mr, Fish. [Extract.] No. 198.J Legation of the United States, London, Ajpril 18, 1872. (Eeceived April 30.) Sm: * * * ■ #. * I spent some time with his Lordship, occupying myself principally in the endeavor to make him understand how little proper comprehension there is here of the state of public feeling and opinion in the United States. They believe, and the Government has seemed to share in the impression, that there is a very general desire among our people, includ- ing the most of our prominent men, that the claims for indirect damages' should be withdrawn, and the Arbitrators not asked to consider or decide on them. I explained to Lord Granville that much of this misappre- hension comes fi-om the course of the English press, giving prominenOfr as it does to every article, letter, or publication of any sort coming from America or purporting to be written by an American taking the British view of the question, and studiously excluding all that would tend to prove the almost entire unanimity of our press and citizens in support of the position taken by their Government. I warned him against trust- ing to the correspondence and writing of certain persons and journals that I named, as affording any true exposition of the general sentiment in our counti'y. And I represented to him that both the Government and citizens were much more generally concerned to have all claiins of every sort, whether regarded as substantial or shadowy, go to the Arbitrators to be decided upon, so that every existing complaint and grievance might be blotted out and wiped away forever, than they were troubled about either the character or amount of the award to be rendered by the Tri- bunal. "What was most especially desired, I assured him, was that a decision of the whole question and extent of the liability of a neutral should be arrived at, so that the rule and the law for all might be known in the future. Indeed, among other things I told Lord Granville frankly that I re- gretted to have to inform him there were not a few of our best people who were growing so dissatisfied with the position which Her Majesty's' Government were now assuming, that they were beginning to say that Great Britain, they supposed, must be permitted to take her course and annul the Treaty, in which event the United States could surmise such an unhappy end of our labors and hopes as well as this Government. CORRESPONDENCE RESPECTINa GENEVA ARBITRATION. 475 All I said, and there was a great deal of it, was expressed and received ia the most friendly manner, and helped to give us, I hope, a better mu- tual understanding, whether it may have or not any other effect or result. His Lordship, I am more than ever satisfied, is sincerely and painfully earnest in his desire to save the Treaty, and I have no doubt that this is equally true of other ministers. ****** I have, &c., EOBT. C. SOHBNCK. 1^0. 18. Mr. Fish to General Sclienck. [Extract.] IJTo. 184.] Department of State, Washington, April 23, 1872. Sir : It is unnecessary now to consider what action this Government might have taken with regard to the present phase of the Alabama claims question had the British Government calmly presented their views with respect to their construction of the Treaty in relation to what are now familiarly called " the indirect clsiims." The public dis- cussion which they have thought proper to excite, and the discourteous tone and minatory intimations of some of the utterances of the ministry, impose "upon the United States a different line of action from that which might have been adopted in response to a calm presentation of a different construction of the Treaty from that which is entertained by this Governmtot, and of the apprehensions which the imagination of the British public seem to entertain of the possible magnitude of the award that may be made for that class of the claims. IN'ot doubting the correctness of the position which this Government has Occupied, and fully convinced that the "indirect claims" were not eliminated from the general complaint of the United States, I am not disposed to question the sincerity of those who hold to the opposite view. This Government is very anxious to maintain the Treaty and to pre- serve the example which it affords of a peaceful mode of settling inter- national differences of the very gravest character. Neither the Government of the United States, nor, so far as I can judge, any considerable number of the American people, have ever at- tached much importance to the so-called " indirect claims," or have ever expected or desired any award of damages on their account. They were advanced during the occurrence of the events of the ■cruisers' depredations, and pending the excitement and the irritation caused by the conduct of Great Britain. They became more prominently associated with the case during the discussions attendant upon the Johnson-Clarendon Treaty, and its rejection ; and it was impossible for the American Commissioners not to lay them as part of the American complaint, and as forming part of the American claims, before the Joint High Commission. That they were not excepted to by the British Commissioners is no fault of this Government. Being left in the complaint, and set forth, unchallenged, in the Pro- 476 TEEATY OP WASHINGTON. tocol, (signed only four days before the signing of the Treaty, and when the Treaty was completed in form and substance, and was being en- grossed for signature,) they could not be omitted from the " Case." # ***** The United States now desire no pecuniary award on their account.. You will not fail to haye noticed that through the whole of my corre- spondence we ask no damages on their account; we only desire a judg- ment which will remove them for all future time as a cause of difference between the two Governments. In our opinion they have not been dis- posed of, and unless disposed of, in some way, they will remain to be brought up at some future time to the disturbance of the harmony of the two Governments. The United States are sincere in desiring a "tabula rasa" on this Alabama question, and therefore they desire a judgment upon them by the Geneva Tribunal. ******* In the correspondence, I have gone as far as prudence would allow in intimating that we neither desired or expected any pecuniary award, and that we should be content with an award that a State is not liable in pecuniary damages for the indirect results of a failure to observe its neutral obligations. It is not the interest of a country situate as are the United States,, with their large extent of sea-coast, a small Navy, and smaller internal police, to have it established that a nation is liable in damages for the indirect, remote, or consequential results of a failure to observe its' ueutral duties. This Government expects to be in the future, as it ha& , been in the past, a neutral much more of the time than a belligerent. It is strange that the British Government does not see that the inter- ests of this Government do not lead them to expect or to desire a judg- ment on the " indirect claims ;" and that they fail to do justice to the sincerity of purpose, in the interests of the future harmony of the two nations, which has led the United States to lay those claims before the Tribunal at Geneva. -******* I need not repeat to you the earnestness of the President's desire to prevent a failure of the Arbitration, or any repudiation of a Treaty which is so hopeful of beneficent results, nor need 1 urge you to continued efforts, by all that is in your power, consistently with the honor and dignity of this nation, to bring about an honorable understanding be- tween the two Governments on this question, which has been, as it appears to us, so unnecessarily and unwisely raised, to the imminent peril of an important Treaty. I am, &c., HAMILTON FISH. No. 19. General Schenck to Mr. Fish. [Extract,] No. 210.] Legation op the United States, London, April 25, 1872. Sir: At this moment it appears too probable that the Government here will * * * * * * *. take such a course as will put an end to the Arbitration at Geneva and to the Treaty. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 477 I will not now attempt to explain or comment on the situation. The ■development and the events of the last few days you will have gathered from my telegraphic communications, and from the reports of proceed- ings in Parliamen,t, and articles from the London journals, which I con- tinue to send you. . If there is to be a disastrous termination of all our work, from which we had hoped so much of good for the two countries and for the world', the obstinate refusal of the British Government and people to go on with a solemn and high engagement that, without any sacrifice of thelT dignity and interests, might have been conducted to a conclusion which would have blotted away all serious causes of disagreement between them and us, will be not a little owing to the course of some of our own citizens. The difficulties have been wonderfully increased of late, and Great Britain encouraged in her position by the tone of some of the Ameri- ■can journals, by inconsiderate declarations of some public men, and by much writing, telegraphing, and conversation, not wise and thoughtful, though generally, perhaps, not mischievously intended. This has led at last to a common conviction here that the best and most influential men of the United States desire to have our Government recede from its position. I await still your communication in reply to Lord Granville's note of the 20th ultimo. I hope, also, with that, or sooner by telegraph, to re- ceive instructions from you, which may direct and help me in any con- tingency likely to occur. I shall doubtless have much to report and bring to your consideration now very soon. In the mean time, I will not fail to keep my mind anxiously directed to any and every expedient by which the Treaty may possibly be preserved, although our interest in maiDtaining and executing its provisions is certainly not greater than the need of this nation, which does not seem to me to fully weigh and appreciate the unhappy consequences to flow from its repudiation. I have, &c., EOBT. 0. SOHBNOK. No. 20. Mr. Fish to General Sehenclc. [Telegram.] Washington, A^pril 27, 1872. You are aware that neither in the Case presented in behalf of this -Government at Geneva nor in .the instructions to you have the United States asked for pecuniary damages on account of that part of the Alabama claims called the indirect losses, which the British Gov- ernment think are not within the province of the Tribunal. We think it essential, however, that the question be decided whether claims of that nature can in the future be advanced against the United States as a neutral by Great Britain when the latter is a belligerent ; for if Great Britain is to be at liberty when a belligerent to advance claims for indirect losses or injuries against this country, then our claims must be maintained and we must press for compensation. A conversation with Sir Edward Thornton induces the belief that the 478 TEEATY OF WASHINGTON. Britisli Government may make a proposal to you to tlie effect that Her JUajesty's Government engages and stipulates that in the future, should Great Britain be a belligerent and this country neutral, and should there be any failure on the part of the United States to observe their neutral obligations, Great Britain will make or advance no complaints, or claims against the United States by reason or on account of any in- 'direct, remote, or consequential results of such failure ; and that, in consideration of such stipulation, the United States shall not press for a pecuniary award of damages before the Geneva Tribunal on account of the claims respecting which Great Britain has expressed the opinion that they are not included in the submission, namely,- the transfer of the American shipping, increased insurance, and the prolongation of the war. Should a proposal to this effect be made by the British Government,, the President will assent to it, it being understood that there is no. withdrawal of any part of the American Case, but an agreement not to. demand damages on account of the claims referred to, leaving the Tribunal to make such expression of opinion as it may think proper on that question. " It is presumed that such an agreement may be carried into effect by an exchange of notes. FISH.. [From Britisb Blue Book, "North America/' No. 9, (1872,) p. 2.] No. 21. JEarl Granville to Sir JE. Thornton. Foreign Office, April 29, 1872. Sir : General Schenck told me this day, in a conversation, that he- had not yet received the answer from Mr. Fish to my letter of the 20th ultimo, but that he had received a telegraphic message, the substance of which he could not officially communicate until after the delivery of Mr. Fish's answer. He then read to me as follows : You are aware that neither in the Case presented in behalf of this Government nor in the instructions to yon, have the United States asked for pecuniary damages on account of that part of the "Alabama claims" called the indirect losses, which the- British Government think are not within the province of the Tribunal. We think it essential, however, that the questiou be decided whether claims of that nature can in the future be admitted against the United States as a neutral by Great Britain when the latter is a belligerent ; for if Great Britain is to be at liberty while a belligerent to advance claims tor indirect losses or injuries against this conn- try, then our claims must be maintained, and we must press for compensation. A ponversation with Sir E. Thornton induces the belief that the British Govern- mpnt may make a proposal to you to the effect that Her Majesty's Government engages and stipulates, that in future should Great Britain be a belligerent, and this country a neutral, and should there be any failure on the part of the United States to observe t;heir neutral obligations, Great Britain will make or advance no complaints or claims against the United States, by reason or on Recount of any indirect, remote, or con- sequential results of such failure ; and that, in consideration of such stipulation, the United States Bhall not press for a pecuniary award of damages before the Geneva Tribunal on account of the claims respecting which Great Britain ha& expressed the- opinion that they are not included in the submission, namely, the transfer of the American shipping, increased insurance, and the prolongation of the war Shoul^a proposal to this effect be made by the British Government, the President will assent to it ; it being understood that there is no withdrawal of any part of the American Case, but an agreement not to demand damages on aooount of the claims referred to,. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 479 leaving the Tribunal to make such expression of opinion as it may think proper ojo, that question. It is prbsumed that such an agreement may be carried into affect by an exchange of notes. I observed to General Schenck that Sir E. Thornton, in whom I had the fullest confidence, had no instructions, and no authority to give an ftpinion on any proposal for the solution of the difficulty. I had purposely desired to confine the negotiations to one channel, in order to avoid confusion. The United States Minister remarted that the words of the telegram- did not go so far as to say that Sir E. Thornton had done so. I then stated that the proposal in its present shape could not' be^ adopted by Her Majesty's Government. It was only proposed that the American Government, who had presented the claims for indirect losses,, shall no fui^ther press them. But the Arbitrators had them before them ; we certainly should not consent to plead against them ; and the mere absence of farther pressing them by the United States Government would leave the matter, as regarded the Arbitrators, in the position it now was. As to the Arbitrators being left to make such expression of opinion as they may think proper on that question, it appeared to be unintelli- gible. If the United States Government agreed substantially to withdraw the indirect claims, it was not only with a feeling, which I cordially appreciated, of maintaining the most friendly feelings between the two countries, but also because they believed it was in the interest of both that there should be no future liability on the part of either Govern- ment for such* claims. If we both came to an agreement, no strength would be given to that agreement by a favorable expression of opinion from a body who were not appointed in order to lay down principles of international law ; and if they gave a contrary opinion, it would be an unseemly result, and against the interest of both countries. I then read to him the following statement of the views which the Cabinet were disposed to entertain as to the course which might be pursued : We are ready to join with the United States in a statement to the Arbitrators that, in any award they may make, they are not to have regard to the indirect claims. We are also ready to state that the language we have hitherto used respecting these in- direct claims involves a declaration of intention, which is to guide our conduct in future. Any such intention, and its binding force on future conduct, would of course be reciprocal. We do not know what is meant by the submission of the abstract question to the Arbitrators, nor do we see how it could be admissible, inasmuch as that question wbiitld already have been virtually decided by mutual consent. General Schenck then asked me why I should not write to him such a note as he would suggest, in which it should be said that " while Her Majesty's Government still adhere to their view that it is not within the province of the Arbitrators to consider or decide upon the claims for indirect losses, and that therefore the Government of the United States ought not to press for a consideration of such claims, yet they are free to state that, in the event of the Government of the United States agrfiping to refrain from pressing fot compensation, or for any pecuniary award for that portion of their claims as set out in their Case to the Geneva Arbitrators, Her Majesty's Government will, on their part, agree that the view of the inadmissibility of such claims which they have hereto- fore presented, will still continue to be their principle of action and con- duct in all like cases, and in similar circumstances, and particularly,, are ready to give assurance, in pursuance of the recognition of sueh principles, to the Government of the United States, that if Great Britaia 480 TEEATY OF WASHINGTON. should at any time hereafter be a belligerent while the United States are neutral, claims of that nature will never be advanced against the "United States." I stated to the United States Minister that the Cabinet, in discussing the scheme sent by Sir E. Thornton, had treated it as Mr. Fish's pro- posal, and had not entertained the thought of its being a proposal to be made by themselves. General Schenck said that it was of great importance that we should make the proposal. I said that I had been writing at his dictation and did not wish to put words in his mouth, but that I thought the words which I had used, " not to have regard" to claims for indirect losses, were better in every way than those which he had adopted from Mr. Fish's telegram, " not to press," &c. • I had no doubt of the good faith of the United States Government, but it was desirable, after the past misunderstanding, to make every- thing as clear as possible. General Schenck declined to deviate from the telegram in this particular. I then suggested the addition of the words " and such agreement being made known to the Arbitrators before the 15th of June," which he adopted. I also pointed out the omission of any declaration of re- ciprocity for the future, which was a matter of course, and he author- ized me to write down " such understanding between the parties of course to be reciprocal for the future." General Schenck repeated a strong appeal to me to be contented with, substantially getting what we wanted. I promised to submit what he had written, and for which I could un- dertake no responsibility, to my colleagues, and we agreed to continue confidential communication in order to save time. After consultation with my colleagues, I forwarded to General Schenck the note and inclosure, of which I transmit copies herewith. I am, &c., GEANYILLE. [Inclosure 1 in No. 21.1 Marl Granville to General Schenck. fConfldential.] 16 Bruton Street, April 29, 1872. My Dear General : I send you in a rough state a paraphrase of your proposed draught. Please return it to me when you have taken a copy. The Cabinet were of opinion that it was for the United States to make the proposal ■officially as well as conhdentially, but they are prepared to concede on this point in. the spirit which you recommend. They insist upon the words in the first half of the third page> as preferable to those you hare taken from the message of Mr. Fish.'' The other alterations are for the purpose of clearness, and in the hope that some of them will be more acceptable to your Government. Yours, ifcc, GRANVILLE. [For Inclosure 2 in No. 21, see p. 481.] , ' " That the Arbitrators are not to have regard, iu any award that they may make, to the above-mentioned claims." (See Inclosure 2.) j j i ^ " The United States shall not press for a pecuuiary award of damages before the ■Geneva Tribunal on account of the claims respecting which," &c. (See page 478.) ' CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 481 No. 22. General Sohencli to Mr. Fish. [Telegram.] London, April 30, 1872. Your 181, received last night, has beea by some accident wet and blurred, but I hope to make it all out to-day. jVileantime your telegram, •which came Sunday night, was the occasion of a strictly confidential interview with Granville yesterday. He objected to this Government making first movement, but that point is now conceded. They object to having Arbitrators express oi^iuion on indirect claims, when the two Governmenfs agree that they are not to be the subject of award. After consideration by Cabinet the following paper was given me last night confidentially as the draught of a possible communication to be made to me, if the United States have promised to assent to it and will previously put Her Majesty's Government in possession of the terms of the assent : Her Majesty's Governmeut adhere to their view that it is pot within the province of the Arbitrators to consider or to decide upon the claims for indirect losses, viz, the transfer of the American shipping, the increased premiums of insurance, and the pro- longation of the war, and that consequently the Government of the United States ought not to press for a consideration of such claims. They are, however, ready to state that; in the event of the Government of the United States agreeing that the Arlsitra- .tors are not to have regard, in any award that they may make, to the above-mentioned claims, Her Majesty's Government will, on their part, agree that the view which they have heretofore presented of the inadmissibility of such claims shall still continue to be their principle of action and conduct in all like oases and in similar circumstances; and that they are ready, in pursuance of the recognition of such principle, to give as- surance to the United States that, if Great Britain should, at any time hereafter, be a belligerent, while the United States is a neutral, claims of that nature, in similar cases and' similar circumstances, will never be advanced against the United States, such an assurance for the future being reciprocally given by both parties. An arrangement such as is here sketched out might be carried into effect by an exchange of notes, ■which shall be communicated to and recorded by the Arbitrators. In submitting this draught of their proposal, I should inform you that I have insisted on this language, " the United States agreeing to refrain from pressing for compensation or for any pecuniary award for the above-mentioned claims." SGHElSrOK. [From British Blue Book North America, No. 9, (1872,) p. 1.] JSTo. 23. Sir B. Thornton to Earl Granville.^ [Extract.] Washington, April 30, 1872. (Received .May 12.) I called upon Mr. Fish at the State Department on th&2Sth instant, Thursday, the day of the week on which he requests that members of ^ The substance of this dispatch was received by telegraph on the 27th of April. 31 A— II 482 TEEATY OF WASHINGTON. the Diplomatic Body may visit him. He informed me that he had received the day before a telegram from General Schenck, iA which he stated that your Lordship had told him that, if Mr. Fish's answer to your note of the 20th ultimo did not contain some satisfactory commu- nication with regard to the claims for indirect damages, Her Majesty's Government would be obliged to announce' its intention of withdrawing entirely from the Arbitration at Geneva. Mr. Fish added that he should sincerely regret to hear of such an announcement being made, for that it could only be looked upon as a menace, and would destroy all hope of an understanding upon the subject. Mr. Fish then sent for the draught of his dispatch to General Schenck in answer to your Lordship's note of the 20th ultimo, and read it to me. Your Lordship will probably have received a copy of it from General Schenck yesterday or to-day. Mr. Fish also read me part of the dispatch which he had sent to General Schenck on the 19th instant, and in which Mr. Fish expressed his sur- prise that Her Majesty's Government should object so much to a decision by the Tribunal of Arbitration at Geneva on the matter of the indirect claims; for that it must be aware that the United States Government neither expected nor desired a money-award on account of those claims, and that the United States were quite as much interested as Great Britain in obtaining from the Tribunal a decision adverse to those claims. The tone of the dispatch was friendly and conciliatory, and was evidently intended to contribute to bringing about an agreement upon the question at issue. Indeed, I gathered that the part of the draught which was not read to me contained a distinct proposal upon the subject. I fear, how- ever, that this dispatch will reach General Schenck too late for practical purposes. Mr. Fish told me that Mr. Adams left New York for England on the 24th instant, and that, on his arrival there, he would convince your Lordship, though unof&cially, that he was entirely opposed to the prin- ciple of claims for consequential damages. But, during the whole conversation, Mr. Fish betrayed anxiety that the Treaty should not be allowed to break down, and frequently expressed his hope that your Lordship would suggest some means of disposing of the indirect claims, which would at the same time satisfy Her Majesty's Government and would be possible for that of the United States; for he said that, even if the latter was not justified in ever having presentd those claims — which he could not admit — it was impossible for it now to recede or withdraw them, unless it should obtain a quid pro quo. If Her Majesty's Government was really anxious that the provisions of the Treaty should be carried out, which 1 earnestly assured him certainly was the case, why, he asked, should not your Lordship, in your answer to his dispatch, now on its way, state that, as the United States Govern- ment had made it evident that it did not desire a money-award on account of the indirect claims, but merely a decision on their merits by the Tribunal, Her Majesty's Government would consent never to present such indirect claims, under similar circumstances, when England might happen to be a belligerent, and would allow the abstract question to be decided for the benefit of both parties, if the United States Government would engage not to ask for a money-award on the indirect claims from the Tribunal at Geneva. Mr. Fish asked my opinion upon this suggestion; but I replied that it was impossible for me to imagine what Her Majesty's Government might think of such a mode of arrangement, which I had now heard from him for the' first time, and upon which I could not possibly have received CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 483 any instructions from your Lordship. Upon his urging, however, that I should let him know my private feeling on the subject, I said that, with some modifications, I thought it possible that it might form the basis of an arrangement, and that I would have no objection to telegraph the substance of his communication to your Lordship. But I asked whether the President would be able to agree to such an arrangement without receiving the sanction of the Senate to it. Mr. Pish replied with confi- dence that he could do so, for that it would be merely an agreement as to the regulation of the mode of reference to the Tribunal, which was entirely in the hands of the Executive. Immediately after my interview with Mr. Pish on the 25th instant, I found, in the evening newspaper, allusions to what he had suggested, and coupled with it a statement that the President disagreed with Mr. Pish upon the subject. The latter paid me a visit on the afternoon of the 26th instant, and assured me that the President was entirely in accord with him as to the possibility of an arrangement on the basis to which he had alluded in his conversation of the previous day ; and he begged me to assure you that he was fully supported by the President. During this visit I pointed out to Mr. Pish that, in case the suggest- ions made by him were taken into consideration, the United States Government would probably be expected to engage on its part that it would never again make such claims against England as a neutral as had recently been presented in its Case. Mr. Pish replied that, as a matter of course, it never would do so, but that to take a formal engage- ment to that effect would involve the necessity of an application to the Senate. :So 24. General ScJienck to Mr. Fish. [Telegram.] London, May 2, 1872. Lord Granville proposes the following as the introductory part of the note submitted to you by my telegram of the 30th ultimo : I have laid before my colleagues the dispatch addressed to you by Mr. Fish on the 16th ultimo, of which you furnished me with a copy on the 1st instant. I informed you, in my letter of the 20th of March, that Her Majesty's Government, in oommuni- cating to you the grounds on which they hold that the claims for indirect losses are ex- cluded from the scope and intention of the reference to the Tribunal of Arbitration at Geneva, did not wish to commence a diplomatic controversy, but merely to comply with the desire substantially expressed by the Government of the United States to be advised of the reasons which had prompted the declaration made by me on behalf of Her Majesty's Government on the 3d of Eebraaxy. Her Majesty's Government are stiU of the same mind ; and although they cannot admit the force of the partial rejoinder which Mr. Fish has made to that statement of their reasons, they agree with Mr. Fish in seeing no fidvantage in the continuance of an argumentative discussion on the sub- ject. It will, however, be understood that, if I do not review the matter of Mr. Fish's dispatch, it is not from an assent to his positions, but from the hope that a way may he found, without prejudice to the arguments heretofore advanced by Her Majesty's Government, to avoid further controversy. In the full expectation, therefore, that an arrangement satisfactory to both countries will be accepted by the Government of the United States, I proceed to state the views of Her Majesty's Government. SCHENCK. 484 TREATY OF WASHINGTON. [From British Blue Book North America, No. 9, (1872,) p. 4.] No. 25. Uarl Granville to Mr. Thornton. Foreign Office, 3Iay 2, 1872. Sm : With reference to my dispatcli of the 29th ultimo, I transmit to you herewith copies of a further private letter to General Schenck, and its inclosure. I am, &c., GRANVILLE. [Inclosure 1.] Earl Granville to General Schenclc. [Confideiitial.J Foreign Officb, May 2, 1872. My Deak Gbnerai. Schenck : According to your request I send you the proposed preface to the words -which I have already communicated to yon, embodying the pro- posal, based ou your suggestions, which we are prepared to make to the Government of the United States, on condition of our being previously informed of their assent, and of the form in which that assent will be given being satisfactory to us. Yours, &c., GRANVILLE. [For inclosure 2 in No. 25, see p. 483.] No. 26. Ilr. Fish to General Schenclc. [Telegram.] Washington, 3Iay 4, 1872. The President regrets that Her Majesty's Government have not thought proper to make the proposal mentioned in my telegram to you of 27th April, which this Government had been led to hope might afford a solution of the differences between the two Governments with regard to the arbitration now pending under the Treaty of Washington. The nature and terms of the proposition contained in your telegram of 30th April are such that it cannot justify his assent. He cannot assent to any proposition which by implication or inference withdraws any part of the claims, or of the Case of this Government, from the consideration of the Tribunal. The British Government pro- poses that the views heretofore presented by them, that certain of the claims put forth, by the United States are not within the province of the Tribunal, be continued as their principle of action and conduct, and that in recognition of such principle an assurance be reciprocally given by both parties. The United States do not entertain the views thus presented by Her Majesty's Government, and cannot enter into an assurance on the basis CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 485 of such principle. The proposal limits the agreement of the British Government to a stipulation not to advance claims of that nature in similar cases and similar circumstances. No two cases are similar, and circumstances similar to those arising during the rebellion cannot occur to Great Britain ; consequently the terms of the proposed agreement guarantee nothing to this Government. The proposal prevents any expression of opinion or of judgment by the Tribunal on the class of claims referred to, and thus virtually denies what this Government believes— that the Tribunal has jurisdic- tion- over all the claims which have been put forth. Under these cir- cumstances the President is compelled to adhere to the opinion that it is within the province of the Arbitrators at Geneva to consider all the claims, and to determine the liability of Great Britain for all the claims which have been put forward bv the United States. PISH. No. 27. I General Scliencic to Mr. Fish. [Telegram.] London, May 5, 1872. Tour telegram of yesterday received to-day. Will endeavor to see Granville to-night or early to-morrow. Will urge him to modify his proposal in accordance with your views. Will you examine it, including introductory paragraphs as given in my tele- grams of April 30 and May 3, and, taking it for a basis, suggest exactly what modifications would make it possible for the President to assent to it ? Also give me draught of such reply as you would be willing to make. I am confident this Government will not agree to the last para- graph of your telegram of April 27. They may agree that if the United States will engage not to press for award for indirect damages, nothing need be said about any modification of the original Case, nor whether such agreement is a withdrawal or not a withdrawal of any part of that Case. Eather than agree to submit the indirect claims to the judgment of the Tribunal, I apprehend this Government, backed by Parliament, would cease negotiation and make an absolute declaration against pro- ceeding with the arbitration. Could the President assent to their offer if I can get the following substitute for what I telegraphed April 30 ? Her Majesty's Government are now ready to state that if tlie United States will and do agree not to press for a pecuniary award before the Tribunal of Arbitration at Geneva, on account of claims for indirect losses or damages, namely, the increased premiums of insurance, the transfer of American shipping, and the prolongation of the war, then Her Majesty's Government wild and do, on their part, engage and stipu- late that, should Great Britain at any time in the future be a belligerent while the United States is a neutral ; and should there be any failure on the part of the United States to observe their neutral obligations, Great Britain will make or advance no complaints or claims against the United States by reason or on account of^any indi- rect, remote, or consequential results of such failure. This rule, or principle, not to advance or press complaints or claims for indirect, remote, or consequential damages, to he mutually and reciprocally observed by both parties in the future. The notes which are exchanged on this subject to be presented to the Tribunal of, Arbitration and entered on its record. SCHENCK. 486 TREATY OF WASHINGTON. ]Sro. 28. General Schench to Mr. Fish. [Telegram.] London, May 6, 1872. Had two hours' discussion with Granville last night. To-day he hands me, as the result of conference with his colleagues, the following amended proposal. Compare it with their former offer and inforni me how far you can assent or must object. I told him I thought it not modified so as to be yet satisfactory, but agreed to submit it to you. Her Majesty's Government are ready to engage that, in the event of the Govern- ment of the United States agreeing that the Arbitrators are not to have regard, in any award that they may make, to the claims for indirect losses, namely, the transfer of the American shipping, the increased premiums of insurance, and the prolongation of the war. Her Majesty's Government will, on their part, agree that the view which they have heretofore presented of such claims shall he their principle of future action and conduct ; and they are ready, in pursuance of the recognition of such principle, to give assurance to the United States that if Great Britain should at any time here- after he a belligerent while the United • States are neutral, Great Britain will never advance any claims inconsistent with that principle, such an engagement for the future being reciprocally given by both parties; the notes which are exchanged on this subject to be presented to the Tribunal of Arbitration and entered on its records. In the prefatory paragraphs he strikes out, at my suggestion, the words "without prejudice to the arguments heretofore advanced by Her Majesty's Government." Eeceived at 1.20 a. m. SCHENCK. No. 29. Mr. Fish to General Schenclc. [Telegram.] Washington, 3£ay 6, 1872. Your telegram received during the night. An agreement which is to bind the future action of this Government can be made only by treaty, and would require the assent of the Senate. Should the Tribunal decide that a nation is not responsible in pecu- niary damages for the consequential results of a failure to observe its neutral obligations, such decision could not fail to be regarded as set- tling the question between the two Governments in the future. If the British Government desire to open negotiations to define by treaty the extent of liability for consequential damages resulting from a failure of observance of neutral obligations, the President will care- fully consider any proposals ip that direction. FISH. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 487 [From British Blue Book "North America," No. 9, (1872,) p. 5.] No. 30. Sir E. Thornton to Earl Granville} [Extract.] Washington, May 6, 1872. {Received May 20.) I called upoQ Mr. Fish on the 2d instant and learned from him that he had on the previous day received a telegram from General Schenck, which, however, was so unintelligible that he had been obliged to tele- graph back that it should be repeated. Mr. Fish, however, seemed to have made out enough of the telegram to have discovered the wish of Her Majesty's Government that the claims for indirect damages should not be submitted at all to the Tribunal of Arbitration even as an abstract question, or for the purpose of obtaining an opinion upon them. With reference to this point Mr. Fish said that it was impossible for the United States Government to agree to with- draw those claims, though it' might consent to ask'no money compensa- tion for them ; for that, even if it were true that it was in error in sup- posing that they were included in the Treaty, though he insisted that they were so included, no nation which had any respect for itself could consent to withdraw claims which had been formally presented after due reflection. Mr. Fish told me that he should, after consulting with the President, instruct General Schenck that, however anxious his Government was that the arbitration should proceed, it could not recede from any part of the Case which had been presented to the Tribunal. On the following day the President desired one of his secretaries to write to the republican members of the Committee on Foreign Eelations of the two Houses, requesting them to meet him at the State Depart- ment on the next day. The democratic members of the committees were omitted from the invitation. The question of the indirect claims was discussed, but it has been im- possible to ascertain precisely what decision, if any, was come to. • I saw Mr. Pish this evening at his own house, when he referred to the telegram which he had received on the 1st instant from General Schenck, and said that Her Majesty's Government required that the United States Government should formally acknowledge that the indi- rect claims were not within the scope of the arbitration. This, he said, was impossible, because they had been presented to the Tribunal under the firm conviction that they were included in the Treaty. Wishing, however, to do his utmost that the arbitration might continue, he had yesterday instructed General Schenck, that if Her Majesty's Government were disposed to negotiate for a reciprocal agreement, that each party as a belligerent should abstain from demanding compensation for indi- rect damages from the other being neutral, the President would take the matter into his serious consideration with an earnest desire to meet the views of Her Majesty's Government. ' The substance of this dispatch was received by telegraph on the 3d of May. 488 TEKATY OF WASHINGTON. [From British Blue Book "Nortli America," No. 9, p. 6.] No. 31. Uarl Granville to Sir U. Thornton. [Extract.] ' Foreign Office, May 6, 1872. With reference to my dispatch of the 2d instant, I have to state to yoa .that General Schenck informed me last night of the instructions he had, received from Mr. Fish. In the first place, he mentioned an objection which had occurred to himself. He thought that the sentence " without prejudice to the argu- ment heretofore advanced by Her Majesty's G-overnment," ought to be "without prejudice to the arguments heretofore advanced by either party." It did not appear from what he said that Mr. Fish objected to the preface — at least, has not criticised it. I observed that the preface was ours, and did net commit the United States Government. General Schenck then proceeded to say that Mr. Fish objected to embodying in the proposal the declaration that " Her Majesty's Govern- ment adhere to their view that it is not within the province of the Arbi- trators to consider or to decide upon the claims for indirect losses, viz, the transfer of the American shipping, &c." Mr. Fish considers that it is not necessary to insert in a statement, of what is to be agreed upon, an insertion as to the principle on which the two parties differ. The United States Government could not, in his opinion, enter upon a basis of an agreement recognizing a principle of conduct and action which they do not admit. Mr. Fish also objected to the phrases " in similar cases and similar circumstances." No two cases are similar, and circumstances similar to those arising during the rebellion in America cannot occur in Great Britain. Consequently, the terms of the proposed agreement guarantee nothing to the United States. He prefers the language which he used, " that Her Majesty's Government stipulates for the future, that should Great Britain be a belligerent, and the United States a neutral, and should there be any failure on the part of the United States to observe their neutral obligations, Great Britain will make or advance no com- plaints or claims against the United States by reason or on account of any indirect, remote, or consequential damages, the result of such failure." General Schenck said he preferred that language. I replied that I could not agree with him in this respect, but I thought the words which I had given to him before he dictated to me his scheme of a draught note would meet this objection. Mr. Fish adheres to having some expression of opinion from the Arbi- trators as to the admissibility of indirect claims, insisting that it is within the jurisdiction of the Tribunal to consider that question. He insists also that there shall be nothing from which it is to be implied that any part of the United States Case is withdrawn. Gen- eral Schenck then said that he wished to make a suggestion, although without instructions. I observed that there must be a limit to these suggestions stated to be without instructions. He believes that the whole thing may be simplified by stripping the proposal of all that is unnecessary, and preserving that which is agreed COEEESPONDENCE RESPECTING GENEVA AEBITRATION. 489 between the parties, without a statement of the views of either or the claims of either. He could understand why Mr. Fish objects to having it declared that there is any withdrawal of anv part of the Case; but if the thing be virtually done, why, General Schenck observed, give it a name ? But he also understood why Great Britain, making an agreement which amounts to a settlement on this point, should not want— or ccm- sent to ask— the opinion of the Arbitrators on that agreement. He had draughted a brief statement of the mutual proposal which he submitted to me, and would also ask Mr. Fish if it were possible for the President to assent to it, if presented by Her Majesty's Government in this form, as a substitute for that already communicated to him. He did this without obtaining for it Mr. Fish's instructions, and for the present therefore entirely confidentially. General Schenck pro- ceeded to read the following statement : Her Majesty's Government are now ready 'to state that if the United States will and do agree not to press for a pecuniary award before the Tribunal of Arbitration at Geneva, on account of claims for indirect losses or damages, viz, for the increased pre- miums of insurance, the transfer of American shipping, and the prolongation of the war, then Her Majesty's Government will and do engage, on their part, and stipulate that should Great Britain at any "time in the future be a belligerent while the United States is a neutral, and should there be any failure on the part of the United States to observe their neutral obligations. Great Britain will make or advance no complaints or claims against the United States by reason or on account of any indirect, remote, or conse- sequential results of such failure. This rule or principle not to advance or press com- plaints or claims for indirect, remote, or consequential damages, to be mutually and reciprocally observed by both parties in the future. The notes which are exchanged on this subject to be presented to the Tribunal ot Arbitration, and entered on its record. I told General Schenck that 1 could not give him any formal answer without consulting my colleagues ; but 1 desired to impress upon him that, individually, I was perfectly convinced such a draught would not further in any degree the negotiation. He observed that it had no official char- acter ; that it was only a suggestion of his own, and that it would only have validity if agreed to by Her Majesty's Government and by Mr. Fish. He continued to say, that the only chance of an agreement was for each party to consider what modifications each should make with a view to an approximation ; and that this would be more easily arrived at by leaving out all unnecessary matter. I told him that, generally speaking, 1 was sure my colleagues did not desire to introduce any un- necessary words. They only desired that the meaning of what was agreed upon should be perfectly clear; that no possible misunderstand- ing should arise. For instance, the words which he preferred as to not pressing for a pecuniary award, instead of those proposed by us, " not to have regard . . . to,"&c.; if there was no arriere pensee, vrhat could be the objection to the latter ? General Schenck repudiated the idea that there could be an arriire pensee, and he himself thought the two phrases came substantially to the same thing, but that his instructions adhered to the first. He did not understand how his words, if communicated to and recorded by the Arbitrators, would admit of a doubt. He hoped we should take his draught, modifying it as little as was possible for us to do. He had telegraphed to Mr. Fish everything that I had communicated to him. He had asked Mr. Fish to tell him whether he on his part would agree to the note of which he had just given me a copy ; and he had begged him (to send him back our draught altered as he ^'ished it to be, and the form of assent which Mr. Fish was ready to give. 490 TREATY OF WASHINGTON. [From British Bine Book "Nortli America," No. 9, (1872,) p. 7.] No. 32. Earl Granville to Sir JS. Thornton. FOKEIGN Office, May 6, 1872, SiE : With reference to my other dispatch of this day's date, I trans- mit to you herewith, for your information, a copy of a revised draught ■which I gave confidentially to G-eneral Sohenck, after consultation with the Cabinet. I pointed out to him that we had left out the sentence objected to by himj "without prejudice," &c., on condition that no converse proposi- tion should appear in the answer from Mr. Fish. That we had omitted the whole of the sentence objected to by Mr. Fish, "Her Majesty's Government adheres," &c. That we had left out the words, "in similar cases and in similar cir- cumstances," and have further modified the sentence as to the principle which will bind both nations for the future. That we had adopted General Schenck's last paragraph. General Sohenck said he would telegraph the revised draught this even- ing, but would give no opinion on it. I am, &c., GEANVILLB. Inclosiire in No. 32. Draiiglit of letter from Marl Granville to General Schenck, as given to General Sclienckhy Earl GratwiUe, May 6, 1873. Sir : I have laid before my colleagues the dispatch addressed to you hy Mr. Fish on the 16th ultimo, of which you furaished me witli a copy on the 1st instant. I informed you in my letter of the 20th of March last that Her Majesty's Government, in communicating to you the grounds on which they hold that the claims for indirect losses are excluded from the scope and intention of the reference to the Tribunal of Arbitration at Geneva, did not wish to commence a diplomatic controversy, but merely to comply with the desire substantially expressed by the Government of the United States to be advised of the reasons which had prompted the declaration made by me on behalf of Her Majesty's Government on the 3d of February. Her Majesty's Government are still of the same mind, and although they cannot ad- mit the force of the partial rejoinder which Mr. Fish has made to that statement of their reasons, they agree with Mr. Fish in seeing no advantage in the continuance of an argumentative discussion on the subject. It will, however, be understood that if I do not review the matter of Mr. Fish's dis- patch it is not from an assent to his positions, but from the hope that a way may be found to avoid further controversy. In the full expectation, therefore, that an arrangement satisfactory to both countries will be accepted by the Government of the United States, I proceed to state the views of Her Majesty's Government. Her Majesty's Government are ready to engage that, in the event of the Government of the United States agreeing that the Arbitrators are not to have regard in any award that they may malie to the claims for indirect losses, viz, the transfer of the American shipping, the increased premiums of insurance, and the prolongation of the war. Her Majesty's Government will, on their part, agree that the view which they have hereto- fore presented of such claims shall be their principle of future action and conduct, and they are ready, in pnrsuance of the recognition of such principle, to give assurance to the United States, that, if Great Britain should at any time hereafter be a belligerent while the United States are neutral. Great Britain will never advance any claims incon- sistent with that principle ; such an engagementifor the future being reciprocally given by both parties. The notes which are exchangecl on this subject to be presented to the Tribunal of Arbitration, and entered on its record. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 491 No. 33. J/r. Fish to General Sclienck. fTelegram.] Washington, Slay 7, 1872. The President earnestly desires to do everything consistent with his duty to the country and with the great interests to the future of both Goyernments, and to the principles so important to civilization as are involved in the Treaty, to avoid the possibility of its failure. This Gov- ernment is of opinion that the submission of what are called the indirect claims is within the intent of the Treaty, and that the consideration of those claims is within the province of the Tribunal. The President alone has not the power to change or alter the terms or the principles of a treaty. He is of the opinion that the suggestion expressed in my in- struction of 27th April went to the extent of his authority, acting with- out the assent of the Senate. The proposal submitted in your telegram of last evening is based upon a theory antagonistic to this principle. The President is anxious to exhaust all proper efforts to reach a set- tlement of the important questions and the vast interests to two States, submitted to the Tribunal of Arbitration, if it can be done without the sacrifice of a principle and consistently with the dignity and the honor of the Government. He will, therefore, be willing to consider, and, if possible, will present for the consideration of the Senate, any new article which may be pro- posed by the British Government, which, while it settles the principle involved in the presentation of what are called the indirect claims, will remove the differences which have arisen between the two Governments in their constructions of the Treaty. FISH. K'o. 34. General ScliencJc to Mr. Fish. [Telegram — Extract. ] London, May 7, 1872. Tour telegram of yesterday was received this morning. After some discussion. Lord liussell's motion was postponed yester- day to next Monday, on Lord Granville's promise that on or before that day he would produce the correspondence or make a statement as to the position of the negotiations now going on. This was only acceded to upon a distinct assurance being given that the Government would not retract its position, that the claims for indirect damages are not within the intention and scope of the reference. To this I am sure they will adhere if no agreement or adjustment be made between now and next . Monday. I have little ddubt that they will make a declaration which will be decisive against submission to arbitration, and will have the nearly, if not quite, unanimous support of both Houses of Parliament. Desirable and important as it is to both parties and to all nations to have a decision of the Arbitrators, that a nation is not responsible in 492 TREATY OP WASHINGTON. pecuniary damages for consequential results of failure to observe neu- tral obligations, I see no chance of getting this Government to agree in terms to a submission so as to obtain such decision ; they will not consent to unite in asking the Tribunal for an opinion on the question, although we assure them that we expect, and they have every reason to feel confident, that that opinion would be against affirming such, national responsibility. The above portion of this telegram I have read to Lord Granville, and have his admission that it is a correct statement. May I hope that if you do not mean to decide that no other way can be found out of the controversy, and therefore the arbitration and Treaty must fail, you will conclude to instruct me explicitly on their proposals communicated to you in my telegrams of the 5th and 6th ? ******** SCHENCK. [From Britisli Bine Book "North America," No. 9, (1872,) p. 8.] K"o. 35. Uarl Granville to Sir E. Thornton. [Extract.] Foreign Office, May 7, 1872. General Schenck called on me to-day, and read to me a telegraphic message from Mr. Fish, of which he did not give me a copy, but the substance of which was to the following effect : An agreement to bind for the future would seem to require the assent of the Senate, but if the Arbitrators were to give a decision on the case which is now before them it would be settling the question for the future. If, under these circumstances, the British Government want to open negotiations for defining the extent of liability for consequential dam- ages resulting from a f£»ilure of observance of neutral obligations, the President would consider carefully any proposal in that direction. I told General Schenck that the only meaning I could attribute to the message was, that Mr. Fish maintained the position to which Gen- eral Schenck was aware Her Majesty's Government could not assent. General Schenck then proceeded to read me a draught of a message which he had sent. The message described what had passed in the House of Lords on the 6th instant correctly up to a certain point, but made some statements as to the assurances of the Government which were not accurate. He stated that the motion of Lord EussplI had only been deferred on the assurance of the Government that we would not appear before the Tribu- ■ nal of Arbitration unless some settlement was previously made. It went on to declare his conviction that we should adhere to this resolve ; that Lord Russell's motion would be carried nearly unaniinous- ly. And he further declared, while recapitulating the reasons why the mattershould be referred to arbitration, viz, in order to have the matter finally settled, and that it was certain that the Arbitrators would decide CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 493 against the indirect claims, yet the English Government would never a^ow the indirect claims to be submitted to Arbitration. He stated he believed his message was correct. I said that I had no objection to tell him that the statement of what had passed in the House of Lords was not historically accurate, as I had only given the assurance that I had nothing to withdraw or retract from what I had said last year or this in Parliament. As to his view of the course which Her Majesty's Government were likely to take, he was aware that while I had avoided anything which might be quoted as an official menace, he had himself frequently told me that he was perfectly aware, from the tone of my language, of the resolution of Her Majesty's Government to refuse to submit the indirect claims to Arbitration, and that I had therefore no wish to object to his giving his own opinion to his Government. JSTo. 36. Mr. Fisli to General Sclienclc. [Telegram.] Washington, Maij 8, 1872. All the propositions made by the British Government involve covertly, probably without design, what this Government cannot agree to, namely, the withdrawal from the province of the Tribunal what we believe to be entirely within their competence. I need not repeat our conviction that the Arbitrators have the right to decide whether the claims to which Great Britain objects are or are not" admissible, and tbat the United States will be content to abide their decision, whether favorable or adverse to that class of claims. The proposition of the British Government is upon the basis that the view which they have heretofore presented shall be a principle of future action and conduct. The view which they have presented is not a principle, but an opinion as to the construction of a specific treaty, and is applicable only to one pending difference on an incidental and tempo- rary question, and cannot be a principle of future action. This Gov- ernment holds a directly opposite view with regard to the competence of the Tribunal to consider the validity of the claims, and, although sincerely desirous of coming to an honorable understanding, cannot adopt the British view, or make it the basis of a reciprocal engage- ment. In my telegram of yesterday I explained that the President cannot, and will not, withdraw any part of what has been submitted within his construction of the intent and spirit of the Treaty. If the British Gov- ernment persists in their demaad, the responsibility of whatever failure of the Treaty may ensue must rest with them, as you will have advised them of the impossibility, resulting as well from the constitutional ina- bility of the President to wi|thdraw what this Government is of opinion has been submitted within the intent and meaning of the Treaty, as from his unwillingness to compromise the rights and the dignity of the Government by yielding to a demand not founded on right or sustained by any valid construction of the Treaty. He hopes, however, that the British Governmeut may see the way to 494 TREATY OF WASHINGTON. maintain the Treaty in the suggestion of a new article, as mentioned in my telegram of yesterday. Should they not adopt this suggestion, the inference will he almost unavoidable that they have deliberately deter- mined to abrogate the Treaty. If, however, they adopt the suggestion, you may say that the probability is that Congress will adjourn about the latter part of this month. Time may be saved, therefore, if nego- tiations on this point should be conducted here rather than in London. If they desire such negotiations, it may be advisable to save time that they give instructions to their Minister here. Tou will keep me advised as to the probable action of the British Government, so that the Ptesident may communicate the correspondence to Congress on Monday, in case the British G-overnment intends to break the Treaty. PISH. [From British Blue Book " Nortli America," No. 9, (1872.) p. 9.] No. 37. lEarl Granville to Sir JE. Thornton. PoEEiGN Office, May 8, 1872. Sir : With reference to my dispatch of yesterday, I have to state to you that I received a note from General Schenck this morning, asking me to postpone the Cabinet, as he had just received a long telegraphic message in cipher from his Government, of the substance of which he would inform me at the Foreign OfQce at half-past 3 o'clock. General Schenck accordingly called upon me in the afternoon, and informed me that the United States Government claim, and insist upon their claim, that under the Treaty the claims for indirect losses which have been put forward are admissible to be considered by the Arbitra- tors, although they do not expect, and never have expected, a pecu- niary award of damages for such claims. Great Britain denies that such claims come within the scope or province of the Arbitrators to con- sider or decide upon. The argumentative discussion has ended, leaving each party adhering to their position. The United States Government in this condition of things have been willing to accept a proposal from Great Britain, that, in consideration of not pressing for a pecuniary award on these indirect claims, Great Britain would, on her part, agree to engage not to advance in the future in any case when she should be a belligerent, and the United States neutral, such claims for indirect damages as are put forward by the United States Government in the Case presented on their behalf to the Tribunal of Arbitration at Geneva, and to make that reciprocally the rule for the future. Great Britain is understood to object to this, on the ground that an agreement not to press for compensation for these indirect claims is not sufficient, because the Arbitrators in that case might themselves proceed to take them into consideration, and make them the subject of an award, and therefore Great Britain has only been willing to establish the rule in regard to indirect damages on condition that the American part of the Case at Geneva, which puts forward these particular claims, should be entirely withdrawn from the consid- CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 495 eration of the Arbitrators. The President holds that he has power to give instructions in regard to the management of the case before the Arbitrators, and therefore could direct that these claims should not be pressed for an award. But, inasmuch as the Government of the United States hold that the claims are admissible to be considered by the Arbi- trators under the Treaty, he cannot withdraw the claims as not being rightfully put forward without its being such an alteration of the terms and principles of the Treaty as is inconsistent with his understanding of it, and the interpretation which has been put upon it by his Govern- ment. The treaty itself, however, may be amended in such a manner as to accomplish the object, and remove all dififerences between the two-Gov- ernments arising out of their different interpretations of its provisions. General Schenck is, therefore, authorized to state that the President will be willing to consider, and, if possible, will present for the consid- eration of the Senate any new article for the Treaty which may be pro- posed by the British Government, which, while it settles the principle involved in the presentation of what are called the indirect claims, will remove the differences which have arisen between the two Governments in the consideration of the Treaty. The President is earnestly desirous to do everything consistent with Ms duty and with the great interest for the future of both countries, and to preserve principles so important to civilization as he thinks are involved in the Treaty of which he is anxious to prevent the failure, and to this end he is willing to exhaust all proper efforts as far as can be done without abandoning any principle, and consistently with the honor and dignity of both Governments. General Shenck said he had no instruction to suggest anything in re- lation to the form of words in which such an offer by Great Britain might be embodied. But it seems to him there might be three modes of framing such an amendment to the Treaty, either of which would accomplish the object. 1st. It might be recited that whereas differences of opinion have arisen between the two countries in relation to the interpretation of the Treaty of Washington as it relates to the right of the United States to put forward before the Tribunal of Arbitration at Geneva a claim for certain damages which, in their Case, are denominated indirect dam- ages, in consideration of the withdrawal of those claims from the Case and from the consideration of the Arbitrators, Great Britain engages with the United States that she will not at any time hereafter, in the event of the United States being a neutral when Great Britain is a bel- ligerent, advance any complaint or claims for such indirect, remote, or consequential damages arising from any failure on the part of the United States in the discharge of her neutral obligations. 2d. Let the Article to be agreed upon leave out any reference to the Case which has been presented at Geneva, establis-h the rule as above, and the United States give instructions to its Agent to withdraw those indirect claims, reciting them particularly whenever an exchange of ratifications of the amendment to the Treaty shall be made ; and a copy of these instructions to be communicated to Great Britain. 3d. Establish by agreement in the same manner a rule against indi- rect damages, and provide that such rule shall relate back to and be held and taken as a part of the Treaty of Washington, the same as if this Article had been executed at the date of that Treaty. I am, &c., GEANVILLE. 496 TREATY OF WASHINGTON. [From British Blue Book "North America," No. 9, (1872,) p. 10.] Ko. 38. Uarl Granville to Sir H. Thornton. [Extract.] Foreign Office, May 8, 1872. With reference to my other dispatch of this day's date, I have to inform you that I saw G-eneral Schenck again after the meeting of the Cabinet, and told him that the Cabinet had considered the report which I made to them of onr conversation of this morning, the message from Mr. Ffsh, and the three personal suggestions of General Schenck as to the mode of executing Mr. Fish's proposals. I stated that they saw objections to the three modes proposed, and were not themselves prepared to frame an Article. They thought it would be better to return to the proposal of an interchange of notes. They un- derstood that the proposal of an Article was intended by Mr. Fish to obviate a diflftculty occasioned by the form of words as to the agreement which the United'States was to make. They were willing to substitute for the words " having regard," &c., the words, " will not bring the in- direct claims before the Tribunal" for consideration. If required to do so, I could give some explanation of the principle^ " founded on the heretofore presented," &c. Ko. 39. General Schenck to Mr. Fish. [Telegram.] London, May 9, 1872. Had interviews with Granville yesterday and last evening. Cabinet long in session. Instead of proposing new Article to Treaty, they prefer interchange of notes, and are willing to further modify their note. I shall tell Lord Granville this morning that in your telegram of April 27 you went as far as is possible to go without concurrence, of Senate. Just received your long telegram of yesterday, which is being deciphered. Will receive and forward no olfer until I know what it contains. SCHEl^OK. No. 40. General SchencTc to Mr. Fish. [Telegram.] London, May 9, 1872. In a long interview with Lord Granville, this evening, I fully presented and urged the reviews and positions contained in your telegram of yesterday. I find this Government makes a great and COREESPONDENCE RESPECTING GENEVA ARBITRATION. 497 apparently insuperable objection to the adoption of a new Article, on the ground that the language describing consequential damages must necessarily be so broad that it would probably commit both Governments beyond what they would either of them wish to be bound. They prefer an interchange of notes, because by that form they can narrow the agreement so as to relate only to the actual points or subjects of difference. I have stated decidedly, as to any inter- change of notes, that the President, without the assent of the Senate, will not go beyond the suggestion made in your telegram of April 27. Lord Granville seems to think that, so far as the difficulty for want of constitutional power is concerned, the President might perhaps be willing to submit notes to the Senate for their advice. Would he do that! I asked Lord Granville, as you instructed me, to agree, in order to save time, that negotiation on this point may be conducted at Washington, but he declines. It would relieve me from a painful responsibility, in- creased immeasurably by having to correspond through the difficult and unsatisfactory medium of the telegraph. His Lordship's last words, after more than two hours' conversation, were as follows : I carefuUy avoid anything like menace ; but in consequence of the views and in- formation you have presented to me yesterday and to-day, I take an unfavorable view of the chances of any settlement. I told him I was getting to be of the same mind. SCHBNCK. No. 41. General Schenck to Mr. Fish. [Telegram.] London, May 9, 1872. Lord Granville proposes to modify his amended note, I telegraphed you on the 6th, by substituting " They will not bring for consideration the indirect claims before the Arbitrators," for the words " The Arbi- trators are not to have regard, in any award they may make, to the claims for indirect losses." I promised him I would submit the change to you, but thought it would be considered more objectionable than before, inasmuch as the United States insist that those claims are now rightfully before the Tribunal. SOHENGK. [From British Blue Book "North America," No. 9, (1872,) p. 11.1 No. 42. Uarl Granville to Sir U. Thornton. Foreign Office, May 9, 1872. Sir : General Schenck came to me to-day and said that he had con- sidered the communication which I had made to him yesterday evening, and of which I informed you in my dispatch of that date. 32 A— II 498 TREATY OF WASHINGTON. He expressed his regret that the Cabinet see so muclx objection to an attempt to settle the difference by a new Article to be added to the Treaty. He had explained to me the difficulty about pursuing the plan of a settlement by an interchange of notes in his statement made to me yesterday, and he desired to do so more explicitly this morning. It consisted in the decided opinion of the President that he had gone as far as he possibly could without the assent of the Senate in the sug- gestion of the character of such a note as would be acceptable or as- sented to by him, in the telegram of the 27th of April. The note pre- sented for his consideration on the part of Her Majesty's Government, originally and as afterwards modified, involves what the Government of the United States cannot agree to, a withdrawal from the province of the Tribunal of what that Government believes to be entirely within its competence to consider, as the Government of the United States^ have been unable to accede to the proposal as contained in either of the forms of notes submitted by Her Majesty's Government; it is on that account regretted that they ha,ve not yeft seen that they could con- sent to propose a form for a new Article to the Treaty, which, while it would remove the whole difficulty, would at the same time have the concurrence, if it were agreed to, of the Senate as well as of the Presi- dent, constituting the whole Treaty power of the United States. The President, he added, had instructed him to say that he cannot withdraw himself any part of what has been submitted within his con- ception of the intent and spirit of the Treaty. This he cannot do from his constitutional inability to recede from what the Government of the United Statesisof opinion has been submitted within the intent and mean- ing of that instrument. If the British Government should make a de- mand that it should be so withdrawn, the responsibility the President feels of any failure of the Treaty, which he wishes to preserve and maintain, would be upon them. The President hopes, however, that as the two Governments have not been able to come to au agreement on account of these difficulties, as to notes being interchanged for the ac- complishment of this i)urpose, the British Government may yet see their way to maintain the Treaty in the suggestion of a new Article, as mentioned or suggested in the telegram of yesterday. If they adopt that suggestion, he was directed to say that Congress will adjourn about the latter part of this month, and that time may be saved, there- fore, if negotiations on this point should be conducted at Washington rather than in London. If Her Majesty's Government desire such ne- gotiation at Washington, it might be advisable, in order to save time, to furnish you with instructions. I expressed my fears that this telegraphic message did not give any hope of a settlement. Her Majesty's Government saw great objections to a new Article. The words used by Her Majesty's Government, " in similar cases and similar circumstances," had appeared to the United States Government as too narrow. The words General Schenck pro- posed, as suggested in the telegram from Mr, Fish, made the Eule too broad. There was great disadvantage in laying down a rule of vast im- port, of which neither Government could without the greatest consid- eration foresee all the possible applications. Was General Schenck sure that such a rule would not exclude many of the claims called di- rect put into the American Case ? General Schenck spoke of the imiiortance of a new Article in order to correct the Treaty. I observed that such an argument would be an additional reason for CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 499 US to object to it, as we should thereby imply that we thought the Treaty required amendment. General Schenck explained, that what he meant was that if such a rule had been inserted in the Treaty originally, then there would have been no such difficulty as has now arisen, and so if an amendment were made now, providing for such a rule, and relating back to the Treaty so as to become a part of it, all the difficulty that has grown up would fall to the ground. He also said, as to the proposal to modify our note so as to substitute for the words " not to have regard," &c., the words " will not bring the indirect claims before the Tribunal," that such a modification would only make the language more objectionable ; for that what his Government claims is that these claims are now rightfully under the Treaty before the Tribunal, and the question is not whether the United States shall bring them there, but whether anything can be devised which may remove them from the consideration of the Arbitrators. I said I understood that the President considered the Treaty included the indirect claims, but that he had only exercised an administrative act in directing that these claims should be put forward in the Case ; that it would be simply another administrative act to direct that the Agent should not press for a pecuniary award, but that to adopt our words " not to have regard," &c., would go beyond his constitutional powers. If, however, the Senate was willing to consent to give powers to the President, which he deemed that he did not now possess, by the adoption of a new Article, what was his objection to obtaining their .consent to an interchange of notes ? I was sure Her Majesty's Government would feel great objection to interrupting the course of negotiation by abruptly transferring it to Washington. I concluded by saying that I carefully avoided anything that might be construed into menace, but, in consequence of the views and infor- mation he had presented to me yesterday and to-day, I took an unfa- vourable view of the chances of settlement. I am, &c., GRANVILLE. No. 43. General ScJiencTc to Mr. Fish. [Telegram.] London, May 10, 1872. Lord Granville has this moment sent a message requesting me to telegraph you immediately that a Cabinet will be held this morning, and that he wishes me to meet him afterwards. This looks like reconsidera- tion of what he said yesterday. I have come to the conclusion that they have two reasons for their conduct : One, an unwillingness on the part of Mr. Gladstone to seem to retract the extreme position he took at the beginning as to the interpretation of the Treaty; the other, an actual uilwillingness to adopt any rule to limit claims against neutrals in the future, their only object being to get rid of a portion of the demands of the United States. SCHENCK. 500 TREATY OF WASHINGTON. No. 44. General Schenck to Mr. Fish. [Telegram.] London, May 10, 1872. Lord Granville a few minutes since brought to me in person the . following draught of an article which, if the Government of the United States think fit to adopt, will be accepted by Her Majesty's Government. I made no comment on it, but said I would telegraph it to you immedi- ately : Whereas tbe Government' of Her Britannic Majesty has contended in the recent correspondence Tvith the Government of the United States as follows, namely : That such indirect claims as those for the national losses stated in the Case presented, on the part of the Government of the United States, to the Tribunal of Arbitration, at Geneva, to have been sustained in the loss in the transfer of the American commercial marine to the British iiag ; the enhanced payments of insurance ; the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion— iirstly, were not included in fact in the Treaty of Washington, and fur- ther, and secondly, should not be admitted in principle as growing out of the acts com- mitted by particular vessels, alleged to have been enabled to commit depredations upon the shipping of a belligerent, by reason of such a want of due diligence in the performance of neutral obligations as that which is imputed by the United States to- Great Britain ; and Whereas the Government of Her Britannic Majesty has also declared that the priu- ciple involved in the second of the contentions, hereinbefore set forth, will guide their conduct in future ; and Whereas the President of the United States, while adhering to his contention that the said claims were included in the Treaty, adopts for the future the principle con- tained in the second of the said contentions, so far as to declare that it will hereafter guide the conduct of the Government of the United States, and the two countries are therefore agreed in this respect : w In consideration thereof the President of the United States, by and with the advice aud consent of the Senate thereof, consents that he will make no claim on the part of the United States, in respect of indirect losses as aforesaid, before the Tribunal of Arbi- tration, at Geneva. sche:n"ck. [From British Blue Book "North America," No. 9, (1872,; p. 12.1 No. 45. Earl Granville to Sir JEJ. Thornton. Foreign Office, May 10, 1872. Sir : General Schenck, at an interview with me this day, read to me a statement, which he subsequently gave to me, and of which I inclose a copy, summing up what he regarded as the present position of the question between the two Governments of the claims for indirect losses. I said, in reply, that I received this paper as another proof of the desire which General Schenck had so persistently shown, while strongly supporting the views of his Government, to maintain the Treaty of Washington. There were some passages in it upon which I might make observations, but I thought the letter, which I was about to send to him, would prove to be the most practical and satisfactory answer. He would CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 501 not fail to remark the labors which Her Majesty's Government had hestowed on an attempt to remove the obstacles to a satisfactory settle- ment of the misunderstanding which had arisen. X am, &c., GEANVILLB. [For inolosure in No. 45, see p. 516.] No. 46. General SohencJc to Mr. Fish. [Extract.] No. 224.] Legation of the United States, London. May 11, 1872. (Eeceived May 27.) SiE : When I received last evening from Lord Granville the draught of the new Article which is proposed by Her Majesty's Government as a supplement to the Treaty of Washington, I hastened to communicate it to you by telegraph. This, with the labor of carefully preparing it to be transmitted in cipher, made it impossible to furnish in time for the mail of to-day, copies of the papers, less important in their character, which accompanied that draught. These accompanying papers consist of two notes with their respective inclosures, of all of which I send copies now. The first is a note of the 10th instant, addressed to me by Lord Gran- ville, recapitulating in a general and compendious way what had re- cently passed between us, and concluding with the information that although they think it belongs to the Government of the United States to frame the suggested Article, yet, in order to meet our wishes and to save any inconvenient delay, they would transmit a draught of an Article, which if the Government of the United States thinks iit to adopt will be accepted by Her Majesty's Government. Accompanying this note and appended to it are a copy of the draught or memorandum, in relation to a proposed exchange of notes on the subject, which was communicated to me on the 6th instant, and a copy of a memorandum which he made of one of our several interviews, being that of the 8th instant, when I com- municated to him the substance of your telegram of the 7th, and .in- formed him that the President would be willing to consider, and if pos- sible would present to the Senate, any new Article which might be pro- posed by the British Government. The second is the brief note from Lord Granville, also of the 10th instant, with which he transmitted the draught of the Article referred to in his first. But the draught which he inclosed was not in fact and precisely, in terms, the one which I have telegraphed to you. After it had been copied and prepared to be sent in cipher. Lord Tenterden came in haste to the Legation from Lord Granville to recall it, and substituted the amended form which I forwarded to you. I preserve and send you a 502 TEEATY OF WASHINGTON. copy of the draught which was withdrawn, as well as of the one which was finally submitted, simply as marking a step in the progress of the negotiation. As these two notes, with their inclosures, were of the same oate, and delivered at the same time, I acknowledged the receipt of the whole together, stating that I would immediately transmit the Article to you by telegraph, and that I did not doubt it would be considered at once by my Government, and the result of that consideration communicated to me through the same medium, and with as little delay as possible and in the same friendly spirit in which the proposal of Her Majesty's Government had been offered. A copy of my note of acknowledg- ment is inclosed herewith. This evening I have received from Lord Granville a note, for the first time formally acknowledging the receipt of your dispatch to me of the 16th of April, a copy of which I had communicated to him on the 1st instant. This note, although dated on the 6th, has obviously just been written, and is now delivered to me antedated in order to keep up the chronological sequence and logical connection of the correspondence. I transmit herewith a copy of it. I have the honor to be, sir, your obedient servant, EOBT. C. SOHBNCK. [Inclosure 1 in No. 46.] Earl Granville to General Schenclc. FOEEIGN Office, Man 1", 1872. SiK : In replying to the communication •which you made to me on the 8tli instant, I think it well to recapitulate the recent communication which I have had with you on the subject of the arbitration on the Alabama claims. On the 29th of April you made an informal communication to me which you subse- quently rendered official, informing me that a proposal made by this country on a cer- tain basis would be acceptable. Her Majesty's Government thereupon decided to as- sume the initiative, and they framed upon that basis, as they understood it, the ac- companying draught with a view to an exchange of notes. This draught, which had been subjected to various alterations to bring it more closely in conformity with the views which you had expressed, and to make it, as they believed, more acceptable to the Government of the United States, was delivered to you on the 6th instant. On the 8th instant you communicated to me a telegraphic message, apparently in reply to this draught, from j'our Government, of which I made the accompanying memorandum. Her Majesty'sGovernment are by this telegram invited to propose an Article in addi- tion to or in amendment of the Treaty of the 8th of May, 1871. The Treaty is, in the judgment of Her Majesty's Government, clear and sufficient, and excludes from the arbitration the claims for indirect losses advanced by the Govern- ment of the United States. It is therefore difficult for Her Majesty's Government to take the initiative in the manner the United States have proposed. They think that it belongs to the Government of the United States, to whose friendly suggestions the communications which have taken place since the date of Mr. Fish's reply to my letter of the 20th of March have been due, to frame the suggested Article ; yet, in order to meet their wishes and to save any inconvenient delay, 1 will transmit to you a draught of anArticle which, if the Government of the United States think fit to adopt, will be accepted by Her Majesty's Government. I have the honor to be, with the highest consideration, sir, your most obedient, hum- ble servant, GRANVILLE. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 503 flnclosnre 2 iu Ifo. 46.] Memorandum. The United States Gorernment claim, and insist upon tlieir claim, that, under the Treaty, claims for the indirect losses which have been put forward are admissible to be considered by the Arbitrators, although they do not expect, and never have expected, a pecuniary award of damages for such claims. Great Britain denies that such claims •come within the scope or province of the Arbitrators to consider or decide upon. The argumentative discussion has ended, leaving each party adhering to their posi- tion. The United States Government, in this condition of things, have been willing to accept a proposal from Great Britain that in consideration of not pressing for a pecu- niary award on these indirect claims. Great Britain would on her part agree to en- gage not to advance in the future in any case, when she should be a belligerent and the United States a neutral, such claims for indirect damages as are put forward by the United States Government in the Case presented on their behalf to the Tribu- nal of Arbitration at Geneva, and to make that reciprocally the rule for the future. Great Britain is understood to object to this on the ground that an agreement not to press for compensation for these indirect claims is not sufScient, because the Arbitra- tors in that case might, themselves, proceed to take them into consideration and make them the subject of an award. And, therefore. Great Britain has only been willing to establish the rule in regard to indirect damages on condition that the American part of the Case at Geneva which puts forward these particular claims should be entirely withdrawn from the consideration of the Arbitrators. The President holds that he has power to give instructions in regard to the management of the Case before the Arbitrators, and therefore could direct that these claims should not he pressed for an award. But inasmuch as the Government of the United States hold that the claims are admissible to be considered by the Arbitrators under the Treaty, he cannot with- draw the claims as not being rightfully put forward without its being such an altera- tion of the terms and principles of the Treaty as is inconsistent with his understand- ing of it, and the interpretation which has been put upon it by his Government. The Treaty itself, however, may be amended iu such a manner as to accomplish the object and remove all differences between the two Governments arising out of iheir different interpretations of its provisions. General Schenck is therefore authorized to state that the President will be willing to consider, and, if possible, will present for the consideration of the Senate, any new article for the Treaty which may be proposed by the British Government, which, while it settles the principle involved in the presentation of what are called the indirect claims, will remove the differences which have arisen between the two Governments in the consideration of the Treaty. The President is earnestly desirous to do everything consistent with his duty and with the great interest for the future of both countries, and to preserve principles, so important to civilization as he thinks are involved in the Treaty, of which he is anx- ious to prevent the failure, and to this end he is willing to exhaust all proper efforts as far as can be done without abandoning any principle and consistently with the hoiior .and dignitv of both Governments. [InclosTire 3 in No. 46. J Earl Granville to General Schenck. FoEBiGN Office, May 10, 1872. Sir: I have the honor to transmit toyou herewith the draught' of an Article referred "to in my preceding note of this day's date. I have the honor to be, with the highest consideration, sir, your most obedient, hum- ble servant, ' GRANVILLE. 1 For draught of the Article see p. 500. 504 TREATY OP WASHINGTON. [InclosTire 4 in No. 46.j General ScliencTc to Earl Granville. Legation of the United States, London, May 10, 1872. My Lord : I have the houor to acknowledge the receipt, at 4 o'clock p. m. to-day, of your note of this date, in which you take occasion to recapitulate some recent com- munications we have had with each other on the subject of the Arbitration on the Alabama claims, and to state briefly, according to your understanding and note of the transactions, what occurred subseq^uently in consequence of those communications. You refer to and furnish me at the same time with copies of a draught of a proposed note delivered to me on the 6th instant, and your memorandum of a conversation I had with you afterward, at an interview on the 8th instant, in which it was suggested to you to propose an Article in addition to, or in amendment of, the Treaty of the 8th of May, 1871. This suggestion of a Treaty stipulation, you will remember, was made in consequence of the failure to obtain from you any draught of a note which, in the opinion of the Government of the United States, was in conformity with the proposal which Mr. Fish telegraphed to me on the 27th of April, as I informed you he was led to expect would be made. Your Lordship proceeds to say that the Treaty is, in the judgment of Her Majesty's Government, clear and sufScient, and excludes fjpm the Arbitration the claims for indirect losses advanced by the Government of the united States, and that it is there- fore difficult for Her Majesty's Government to take the initiative in the manner the United States have proposed ; that Her Majesty's Government think it belongs to the Government of the United States, to whose friendly suggestion the communications which have taken place since the date of Mr. Fish's reply to your letter of the 20th of March have been due, to frame the suggested article ; but yet, in order to meet their wishes and to save any inconvenient delay, you will transmit to me a draught of an Article, which, if the Government of the United States think fit to adopt, wUl be accepted by Her Majesty's Government. ' Asd I have also to acknowledge the receipt of another note of this date from your Lordship, which was delivered to me at the same time, inclosing the draught of an Article in the preceding one referred to. I will hasten to communicate immediately by telegraph this draught to my Govern- ment; and I doubt not it will be considered at once, and the result of that conslderar tiou communicated to me through the same medium, and with as little delay as possible, and in the same friendly spirit in which your proposal is offered. I have the honor to be, with the highest consideration, my Lord, your Lordship's most obedient servant, KOBT. C. SCHENCK. [Inclosure 5 in No. 46.] ^ Earl Granville to General Schenck. Foreign Oeiice, May 6, 1872. Sir : I have the honor to acknowledge the receipt of Mr. "Fish's dispatch of the 16th April, which you communicated to me on the 1st instant. I abstain from addressing any observations to you on the tenor of that dispatch pending the result of the com- munications which are now passing between us, and which it is the earnest hope of Her Majesty's Government may lead to a satisfactory settlement of the questions under discussion between our two Governments. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. ]S"o. 47. The following dispatch was published ia the supplement to the Lon- don Gazette, May 17, and communicated, in accordance with instructions from his Government, by Sir Edward Thornton, in a note dated May 31,. 1872. (Eeceived June 1.) OOREESPONDENCE RESPECTING GENEVA ARBITRATION. 505 Earl Granville to Sir E. Thornton.^ Foreign OrmcE, May 13, 1872. Sir : Her Majesty's Governaient have refrained from coutiauing an argumentative discussion with the Government of the United States upon the scope and intention of the Articles in the Treaty of Washington relating to the Arbitration on the "Alabama claims." There are, however, some passages in Mr. Fish's dispatch on this subject of the 16th ultimo, upon which it seems desirable that, for your own information, and for use in any future communications with the Government of the United States, you should be put in possession of the views of Her Majesty's Government. In the first place, Mr. Fish takes exception to the assertion in my letter of the 20th of March, that although it is true that, in some of the earlier letters of Mr. Adams, vague suggestions were made as to possible liabilities of this country, extending be- yond the direct claims of American citizens for specific losses arising from the capture of their vessels by the "Alabama," "Florida," "Shenandoah," and "Georgia," no claims were ever defined or formulated, and certainly none were ever described by the phrase "Alabama claims," except these direct claims of American citizens. Mr. Fish states that I cannot be disposed to intend more than to say that the claims- for indirect or national losses and injuries were not "formulated " by the United States Government, and the amount thereof set forth in detail and as a specific demand. I did not, however, confine myself to saying that no claims of this nature were ever- defined or formulated, but added that no such claims have ever been " described " as "Alabama claims." > Mr. Fish admits that the claims for indirect or national losses were not formulated or defined, but proceeds to cite various passages in the correspondence in which he considers that they were brought forward. He does not mention one instance in which they were described as "Alabama claims." The fact is that, throughout the correspondence, the representations made by the United States Government respecting the actual claims for injuries sustained by American citizens from the depredations of the "Alabama " and other cruisers were interspersed with complaints of the supposed premature recognition of the belligerent rights of the Gonfederate States by the issue of Her Majesty's Proclamation of Neu- trality, and of the proceedings of blockade-runners. Nearly all the passages cited by Mr. Fish will be found, when read with their con- text, to have reference to these complaints, and to the indefinite suggestions of lia- bility founded on them. On the other hand, on turning to the Memorandum, inclosed in my letter of the 20th of March, it is apparent that the phrase "Alabama claims" has uniformly been used to distinguish the actual claims on account of the acts com- mitted by the "Alabama " and the other cruisers from these complaints of the " atti- tude" assumed by Great Britain. Mr. Fish lays great stress on the statement in Mr. Adams's letter of the 20th Novem- ber, 1862, that he was instructed to " solicit redress for the jiaironaZ and private injuries already thus sustained." The injuries thtis sustained were, as appears by the inclosures in Mr. Adams's letter, the destruction of the " Ocmulgee," and other vessels by the "Al- abama." As already pointed out in the Memorandum, Mr. Adams spoke merely of the " depredations committed on the high seas upon merchant-vessels " by the "Alabama," and of "the right of reclamatiom of the Government of the United States for the grievous damage done to the property of their citizens," and referred to the Claims Commission under the Treaty of 1794 as a precedent for awarding compensation. There is not a word in the letter to suggest any indirect or constructive claims. In the dispatch of the 19th of February, 1863, Mr. Seward, in a similar manner, uses the term " its claims " with obvious reference to the claims put forward by the United States on behalf of American citizens ; those, indeed, being the only claims that had been indicated in the correspondence between Mr. Adams and Lord Russell to which he- was alluding. I must remark that this dispatch of the 19th of February, 1869, was not communi- cated to the British Government. Mr. Fish has omitted some important words in the next passage which he adduces- from Lord Russell's dispatch to Lord Lyons on the 27th of March, 1863. The dispatch gives an account of a conversation with Mr. Adams, at the close of which Lord Russell said that it was bis belief " that if all the assistance given to the Federals by British subjects and British munitions of war were weighed against simi- lar aid given to the Confederates, the balance would be greatly in favor of the Federals." Mr. Adams totally denied this proposition. " But above all," he said, " there is a man- ifest conspiracy in this country, of which the Confederate Loan is an additional proof,- to produce a state of exasperation in America, and thus bring on a war with Great 'For reply of Mr. Fish to this communication, see No. 86, p. 547. 506 TREATY OF WASHINGTON. Britain, with a view to aid the Confederate cause, and secure a monopoly of the trade of the Southern States, whose independence these conspirators hope to establish by these illegal and unjust measures." Mr. Fish omits the words " of which the Confederate Loan is an additional proof,' which, taken with the context, show that Mr. Adams was then speaking, not of the case of the " Alabama," but of the assistance in money and materials which he con- sidered was improperly rendered to the Confederate States by blockade-running and the Cotton Loan. Mr. Adams's letters of the 7th of April and 20th of May, and Lord Russell's letter of the 4th of May, 1865, are commented on in the Memorandum, Part II, and it is unnec- essary for me to make any further observations on them, as Mr. Fish does not reply to those which I have already offered. Whatever may have been the purpose to re- quire indemnification, no claim was presented or notified, and the grievances of which complaint was made were in no way identified with the " Alabama claims." The dispatch of the 14th of February, 1866, was not communicated to Her Majesty's Government ; but, on referring to the 3d volume of the Appendix to the American Case, p. 628, in which it is given, it appears to refer to the possibility of fresh negotia- tions in regard to a revision of the Neutrality Laws and to Lord Russell's refusal of arbitration. Both these subjects are referred to at page 625, and the dispatch accord- ingly concludes, after the paragraph quoted by Mr. Fish, by saying, "I think that the country would be unanimous in declining every form of negotiation that should ha,ve in view merely prospective reguJations of national intercourse, so long as the justice of our existing claims for indemnity is denied by Her Majesty's Government, and those claims are refused to he made subject of friendly but impartial examination." There can be no pretense that the claims which Lord Russell refused to submit to arbitration extended to indirect claims. The proposal arose in connection with "a claim for the destruction of the ship ' Nora ' and other claims of the same kind," (see Mr. Adams's letter of the 23d of October, 1863,) and Lord Russell, in reply to it, stated that Her Majesty's Government must decline "either to make reparation and com- pensation /or tlie captures made ly the 'Alabama,' or to refer the question to any foreign State." I have already pointed out that no importance can be attached to the claims of private citizens being spoken of by Mr. Seward as " our claims." The " claims of citizens of the United States against Great Britain for damages, &c., by means of depre- dations upon our commercial marine committed on the high seas by the ' Sumter,' the 'Alabama,' the ' Florida,' the ' Shenandoah,' " «fcc., of which a summary was annexed to the dispatch from Mr. Seward to Mr. Adams, of the 27th of August, 1866, communi- cated to Lord Stanley, and which are undeniably private claims, are mentioned in that dispatch as " the claims upon which we insist," and " our claims." The next dispatch referred to, that from Mr. Seward to Mr. Adams, of the 2d of May, was likewise not communicated to Her Majesty's Government. The context clearly shows that the " injuries " from " the first unfriendly or wrongful proceeding " referred to the " concession of belligerency." Mr. Seward, in a preceding paragraph, says, " I feel quite certain that the balance of faults has been on the side of Great Britain. First, the concession of belligerency ought not to have been made ; second, upon our earnest appeals it ought to have been earlier rescinded." The dispatch goes on to state the conviction of the American people that the " proceedings of the British Government in recognizing the Confederacy were not merely unfriendly and ungener- ous, but entirely unjust." In another part of Mr. Fish's dispatch complaints (not claims) are noticed as having been made by Mr. Adams on the 30th of December, 1862, 14th and 27th of March, 1863, and 28th of April. The "acts" complained of in the first extract will be seen, on reading the entire passage, to have been that " vessels owned by British subjects have been and are yet in the constant practice of departing from British ports laden with contraband of war and many other commodities, with the intent to break the blockade and to procrasti- nate the war." The dispatch of the 14th of March, 1863, refers to certain intercepted correspondence relating to the proceedings and supposed intentions of Confederate agents, blockade- runners, and to the Cotton Loan. The complaint on the 27th of March, as I have already explained, also referred to the Cotton Loan and to these proceedings of Confederate agents. The dispatch of the 28th of April begins, '"I am instructed to inform your Lordship that the Government of the United States has heard with surprise and regret of the negotiation of a loan in this city," and proceeds to state that " this transaction must bring to an end all concessions, of whatever form, that may have been heretofore made for mitigating or alleviating the rigors of the blockade in regard to the shipment of cotton;" and concludes, " I am sure that it is with the greatest reluctance it" [the United States Government] " finds itself compelled, by the .offensive acts of appar- ently irresponfjible parties, bent upon carrying on hostilities under the shelter of neu- CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 507 trality, to restrict rather than to expand the avenues of legitimate trade. ' The respon- aiMity for this ' [t. c, for this restriction] ' must rest mainly upon those who, for motives best known to themselves, have labored and continue to labor so strenuously and effec- tually to furnish the means for the protraction of the struggle.' " I have reviewed the passages cited by Mr. Fish in support of his argument, that the ' Alabama claims" included other claims than those for the actual losses of American citizens, in order to show how little support they afford to it ; but this is almost super- fluous, as a conclusive answer is afforded by the very volume of dispatches from which Mr. Fish has taken these extracts. Mr. Reverdy Johnson, in a dispatch to Mr. Seward dated 5'ebruary 17, 1869, (page 767,) containing a report of his negotiations with Her Majesty's Government, states : " 1 hear that in some quarters objections are made to the Claims Convention, for which I was not prepared. " 1. It is said, I am told, thai the claims to be submitted should not be all that have arisen subsequent to July, 1853. " 2. That no provision is made for the submission of any losses which our Govern- ment, as such, may have sustained by the recognition of the insurgents as belligerents, and the depredations upon our commerce by the 'Alabama' and other vessels. » * * "As regards the second objection," he urges, "I am at a loss to imagine what wbuld be the measure of the damage which it supposes our Government should be indemni- fied for. How is it to be ascertained ? By what rule is it to be measured ? A nation's honor can have no compensation in money, and the depredations of the 'Alabama' were of property in which our nation had no direct pecuniary interest. If it be said that those depredations prevented the sending forth of other commercial enterprises, the answer is twofold : first, that if they had been sent forth, the nation would have had no direct interest in them ; and, second, that it could not be known that any such would have been undertaken. Upon what ground, therefore, could the nation demand compensation in, money on either account ? And if it was received, is it to go into the Treasury for the use of the Government, or to be distributed among those who may have engaged in such enterprises, and how many of them are there, and how are they to be ascertained ? France recognized the insurgents as belligerents, and this may have tended to prolong the war. This, too, it may be said, was a violation of her duty, and affected our honor. If we can claim indemnity for our nation for such a recogniticm by England, we can equally claim it of France. And who has suggested such a claim as that ? "But the final and conclusive answer to these objections is this : " 1. That at no time during the war, whether while the 'Alabama ' and her sister ships were engaged in giving our marine to the flames, or since, no branch of the Gov- ernment proposed to hold Her Majesty's Government responsible, except to the value of the property destroyed, and that which would have resulted from the completion of the voyages in which they were engaged. The Government never exacted anything on its own account. It acted only as the guardian and protector of its own citizens, and therefore only required that this Government should pay their losses, or agree to submit the question of its liability to friendly arbitrament. To demand more now, and particularly to make a demand to which no limit cam well be assigned, would be an entire departure from our previous course, and would, I am sure, not be listened to by this Government, or countenanced by other nations. We have obtained by the Convention in question all that we have ever asked ; and with perfect opportunity of knowing what the sentiment of this Government and people is, I am satisfied that nothing more can be accomplished. And I am equally satisfied that if the Convention goes into operation, every dollar due on what are known as the 'Alabama claims ' will be recovered." If Mr. Johnson was mistaken in the view thus decidedly expressed, it might be ex- pected that some notice would have been taken of so important an error. But Mr. Seward's reply of March 3, 1869, gives no intimation of any dissent whatever. He writes, " Your dispatch No. 112 of the 17th ultimo, relative to the Protocol and Con- vention recently signed by you on behalf of this Government, has this day been received and submitted to the President. He directs me to to say, in reply, that it is regarded as an able and elaborate paper, and would have been communicated to the Senate had it not reached here at the close of the present session, and that of his Ad- ministration." . , J. Thus, according to an uncontradicted statement in an official dispatch from the United States Minister in London to the Government at Washington, officially published by the United States Government, that Government had never exacted anything on its own account," and the claims, " known as the 'Alabama claims ' " had been limited during the whole war, and in the subsequent negotiations up to February, 1869, to the claims for the value of the property destroj'ed, and that which would have resulted from the •completion of the voyages in which the captured vessels were engaged. Mr. Johnson confirmed the statement in his dispatch, in a letter to Mr. J. A. Parker, published in the "New York Journal of Commerce," 30th November, 1870 : "My in- 508 TREATY OF WASHINGTON. structions, as did those of Mr. Adams, looked exclusively to the adjustment of indi- vidual claims, and no alleged commission or omission of the British Government of her duty to the United States pending the war was given in any part of the corre- spondence between the two Governments as having any influence upon other than indi- vidual claims." It is not easy to understand how a class of claims which had been known under one appellation for seven years could have suddenly acquired a far wider and more onerous significance. Mr. Fish relies on Mr. Eeverdy Johnson's proposed amendment of the Clarendon- Johnson Convention, on these public or national claims having been prominently he- fore the Senate when|that Convention was under advisement, (by which it is to be pre- sumed he refers to Mr. Sumner's speech, the only part of the proceedings which was published,) on the President's Message of December, 1869, and on his dispiitch to Mr. Motley of the 25th of September, 1869. Mr. Johnson's proposal, however, was not to include national claims under the head of "Alabama claims," but to superadd them by inserting certain words after the words " agree that," in the first Article of the Convention. Had his proposal been adopted, the Article would have stood thus : " The High Con- tracting Parties agree that" — here comes the insertion — "[all claims on the part of Her Majesty's Government upon the Government of the United States, and all claims of the Government of the United States upon Her Majesty's Government, and] all claims ou the part of subjects of Her Britannic Majesty upon the Government of the United States, and all claims on the part of citizens of the United States upon the Government of Her Britannic Majesty, including the so-called 'Alabama claims,'" &c. Mr. Johnson avowedly made this proposal, as Lord Clarendon informed you in his dispatch of the 22d of March, 1869, to introduce " claims to compensation on account of the recognition by the British Government of the belligerent rights of the Confeder- ates," which the British Government might balance by "claims to compensation for damages done to British subjects by American blockades, which, if the Confederates were not belligerents, were illegally enforced against them." Mr. Johnson's belief was that the Convention was unacceptable because it did not include national claims on account of the recognition of belligerent rights, which he purposely distinguished from the " Alabama claims, " and was in no respect therefore inconsistent with his dispatch of the 17th February, limiting the meaning of that ex- pression. The information on which he founded that belief was derived, as he reported to Mr. Fish on the 9th of April, 1869, from a private source ; and his suggestion made in the same dispatch, that instructions should be given to him to endeavor to sapply the omission, was not favorably entertained by the United States Government, who telegraphed in reply that " as the Treaty was then before the Senate no change was deemed advisable." / The only intimation, as I have stated, which Her Majesty's Government possessed of the propriety of making any demands for national losses having been debated or con- sidered by the Senate, was, by the publication of Mr. Sumner's speech, in which he urged that England was liable for national injuries of the most extensive character j but these injuries were rhetorically deduced, chiefly from the Proclamation of Neu- trality, and the supplies furnished through the blockade. The efl'ect of Mr. Sumner's speech in England was reported by Mr. Johnson to Mr. Fish on the 10th of May : " If an opinion may be formed from the public press, there is not the remotest chance that the demands contained in that speech will ever be rec- ognized by England. The universal sentiment will be found adverse to snch a recog- nition. It would be held, as I hear from very reliable source, to be an abandonment of the rights, and a disregard of the honor of this Government." Her Majesty's Government never learned that Mr. Sumner's views were indorsed by the Government of the United States. Mr. Fish next mentions his instructions to Mr. Motley, of the 25th of September. These instructions, however, were not communicated to Her Majesty's Government, and when Mr. Motley told Lord Clarendon on the 10th of June, 1869, that the Con- vention " was objected to because it embraced only the claims of individuals, and had no reference to those of the two Governments on each other; and, lastly, that it settled no question, and laid down no principle," he proceeded to speak of the " risk and responsibility" incurred by a Government which conferred belligerent rights, and thus his representations naturally connected themselves with Mr. Johnson's proposal with regard to the mutual claims of the two Governments. Mr. Fish admits that, in his dispatch of the 25th of September, he " made no claim or demand for either direct or indirect injuries." These indirect injuries could not therefore have received the designation of "Ala- bama claims" from that dispatch. Indeed, ou examining the extracts which he gives from it with their context, it is apparent that the " vast national injuries" which he states that he presented iu 'it are ascribed to other causes than the acts committed by the Confederate cruisers. COEEESPONDENCE EESPECTING GENEVA ARBITRATION. 509 The first extract, beginning " The number of our ships thus directly destroyed," &c. , follows a paragraph complaining of the Proclamation of Neutrality : " In virtue of the Proclamation, maritime enterprises iu the ports of Groat Britain, which would other- wise have been piratical, were rendered lawful, and thus Great Britain became, and to the end continued to be, the arsenal, the navy-yard, and the treasury of the Coufed- eraciy. " A spectacle was Wms presented without precedent or parallel in the history of civ- ilized nations. Great Britain," &c. The second extract runs tlius : » "We complain that the insurrection in the Southern States, if it did not exist, was continued, and obtained its enduring vitality by means of the resources it drew from Great Britain. "We complain that by reason of the imperfect discharge of its neutral duties on the part of the Queen's Government, Great Britain became the military, naval, and financial basis of insurgent warfare against the United States. We com- plain of the destruction of our merchant marine by British ships, manned by British seamen, armed with British guns, dispatched from British dock-yards, sheltered and harbored in British ports. We complain that, by reason of the policy and acts of the Queen's Ministers, injury incalculable was inflicted on the United States." The third extract, respecting the vast national injuries, is followed in the dispatch by a passage explaining the various causes of injury, which Mr. Fish has omitted to notice : " Nor does he attempt now to measure the relative effect of the various causes of injury, as whether by untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply , of ships, arms, and munitions of war to the Confederates, or otherwise, in whatsoever manner." Lord Clarendon's memorandum of observations on Mr. Fish's dispatch, like the dis- patch itself, touched on various topics beside that of the Confederate cruisers, and Her Majesty's Government cannot admit that, because Mr. Motley read a dispatch to Lord Clarendon on the 12th of January, 1870, stating that Mr. Fish had not included it " among the papers respecting the 'Alabama claims,' " therefore all the subjects men- tioned in it were " Alabauia claims." Still less can they admit that because Mr. Bernard, in the 14th chapter of his work, gave certain extracts from Mr. Fish's dispatch, under the head of " Alabama claims," that dispatch became the standard by which the claims known as the " Alabama claims" was to be measured. It happens moreover that, in the extracts given by Mr. Bernard in the chapter to which Mr. Fish refers, the three passages cited by Mr. Pish in his present dispatch as relating to indirect injuries and national losses are omitted. ■ It only remains to notice the President's Message of December, 1869. This Message does not mention the " Alabama claims," but speaks of the " injuries resulting to the United States by reason of the course adopted by Great Britain during our late Civil War." I have thus been able to show, upon the testimony of Mr. Reverdy Johnson, the American Minister, corroborated on examination by the extracts cited by Mr. Fish, that for the first seven years of the discussion up to 1869, none but direct claims were " known as ' Alabama claims ;' " and that in the only authoritative document in which national indirect injuries were mentioned, up to the time of the recent negotiation, they were not described as "Alabama claims," or as claims of any description. Mr. Fish states that "continental jurists and publicists discussed the national claims on account of the prolongation of the war under the head of ' riSclamations,' having 'qu'un vap-poTi indirect, et nuUement uu rapport direct aveo les depredations re- eUement oommises par les croiseurs.' " The quotation appears to be taken from a pamphlet by Dr. Bluntsohli, entitled "Opinion impartiale sur la question de 'I'Alabama' et sur la mani6re de la r^soudre." In this pamphlet Dr. Bluntschli reviews the various points mentioned by Mr. Sumner in his speech in the Senate on the 13th of February, 1869," including the recognition of belligerency. In the sixth section he discusses the effects attributed by Mr. Sumner to the acts of the "Alabama" and other vessels, and states that all the effects are at- tributable, in the first place, to the cruisers themselves, and not to the British Govern- ment. " Sa faute ne consiste pas k avoir ^quip^ et appareilie les corsaires, mais a n'avoir pas empScM leur armement et leur sortie de son territoire neutre. Mais cette /awiei n'a qu'un rapport ijifireci et nuUement un rapport ffirecJ avec les depredations reellement commises par les croiseurs."^ Dr. Bliintschli's remark did not, therefore, relate to claims for indirect losses, nor does the word "reclamations" occur m the sen- tence, in the paragraph, or iu the whole section from which the quotation is taken, All that he says is that the default on the part of Great Britain, by which the cruisers escaped, has but an indirect, and in no way a direct, connection with the depredations actuallv committed by them. Mr. Fish gives as a reason for no claims for national losses having been defaned" or 'The italics are Dr. Bliintschli's. „ ,o-/. a^^, , *" Revue de Droit International et de Legislation oomparee," 18/0, pp. 473-4. 510 TREATY OP WASHINGTON. formulated, that Lord Russell objected, in July, 1863, to any claims being put forward. As Mr. Adams continued to preseat claims for the destruction of property by the "Ala- bama" in August, September, and October of that year, and numbers of similar direct claims have since been presented, Her Majesty's Government are unable to see the force of this argument. Whatever may have been the reason, the fact remains, that up to the time of the arrival of the British High Commissioners at Washington, the term "Alabama claims" had a recognized and well-known meaning as direct claims, and that no other claims had been presented to the British Government. Nor, indeed, were these other claims even then presented. The American High Commissioners, as appears by the 36th f rotocol, stated that the history of the "Alabama," and other cruisers, showed extensive direct losses, and in- direct injury, and that Grea.t Britain had become justly liable for the acts of those cruisers and their tenders ; that the claims for the loss and destruction of private prop- erty, which had thus far been presented, amounted to about 14,600,000 dollars, and "that in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice,' however, to the right to indemnification on their account, in the event of no such settlement being made." The "indirect losses "were thus mentioned, not as claims, but as grievances, and were mentioned only to be withdrawn from discussion. Mr. Fish says that it is unfortunate that the British High Commissioners did not remonstrate against the presentation of these claims, and " from the first to the last took no exception, and recorded no objection, to the presentation made by the Amer- ican Commissioners of the claims generically known as the ' Alabama claims,' which stand on the Protocol as a ' genus,' or class of claims comprehending several species, and among them enumerating specifically the claims for indirect losses and injuries." The answer to this is, that no mention is made in the Protocol of " claims generic- ally known as the 'Alabama claims,' " or of any specific enumeration of them, or of any such presentation at all. All that occurred was the above-mentioned statement that the history of the "Alabama" and other cruisers showed indirect injuries, fol- lowed by the waiver of the indemnification on their account, in the hope of an amica- ble settlement. The British High Commissioners therevipou took the natural course of not " enter- ing upon a lengthened controversy" upon the barren question of injuries for which they believed no claim was presented, and these indirect losses and injuries were never, as yon are aware, again brouglit forward by the American High Commissioners, nor did they re-appear until they were revived in the case presented by the United States Agent at Geneva, on the 15th of December. Mr. Fish could not have been ignorant, from the report to which I have already re- ferred, which he had received from Mr. Johnson, and from the discussions in the pub- lic press, of the feeling in England with regard to the exaggerated pretensions in Mr. Sumner's speech; and when he intended to introduce as " Alabama claims" similar claims of equally onerous character, it is much to be regretted that he and his col- leagues did not explain more clearly that by " an amicable settlement " they meant one particular form of settlement, and that if the British High Commissioners did not acquiesce in it, they would bring forward the constructive claims, for which an enor- mous indemnity might be held due. Instead of this, the American High Commissioners made a statement which was ac- cepted by the British High Commissioners and read by Her Majesty's Government, and, as far as they are aware, by the press and public of both countries, in a sense which, it is now stated, the American High Commissioners never intended it to bear, but which, until the interpretation appeared in the American Case, seemed the only sense in which it could be read. Her Majesty's Government cannot accept the view which Mr. Fish appears to enter- tain that a negotiation must necessarily be a matter of bargain, in which a concession on one side is to he set ofl; in each instance against a concession on the other. The waiver of the constructive claims was, as I stated to General Schenck, a requisite pre- liminary to the negotiation, because Her Majesty's Government could not (as the Government of the United States must have been aware then, and must have since become convinced) have assented to any mode of settlement which comprised these constructive claims, upon which the opinion of this country had already been pro- nounced so strongly when they were raised by Mr. Sumner. « Mr. Fish asks, " How could it happen that so important a feature of the negotiation as this alleged waiver is now represented to be was left; to inference, or to argument from intentions never expressed to the Commissioners or the Government of the United States until after the treaty was signed ? " The amplitude and the comprehensive force of the 1st Article (or the granting clause) of the Treaty did not escape the critical attention of Her Majesty's Commis- sioners ; but was any effort made to limit or reduce the scope of the submission, or to exclude the indirect claims 1" CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 511 The answer to this is that, in the first place, theBritish High Commissioners belicTed that after the waiver they were agreed with the United States High Commissioners upon the basis of the terms of the submission; and, in the second place, that they did limit the scope of the submission. The British High Commissioners, in the information which they have furnished to Her Majesty's Government, both during the negotiation and since the presentation of the American Case, have uniformly maintained that the claims for indirect losses were not included, nor intended by them to be included, in the terms of the submission to arbitration, and you are aware that the British High Commissioners objected to the adoption of a form of reference to the Arbitrators, which might from its vagueness be taken to permit the introduction of such claims, and that it was not until after length- ened discussion in the Colnmission that the terms of reference as they now stand in°the Treaty were settled. Her Majesty's Government canaot acknowledge that the nature of the claims submit- ted was left to inference. On the contrary, the precise claims referred to arbitration were closely defined and limited. Mr. Fish writes as though the reference to arbitration compi'ised " differences " and "complaints," and "all claims ;" but the British High Commissioners especially guarded against this. The claims submitted must be both " claims growing out of the acts committed by the aforesaid vessels," i. e., "Alabama" and other cruisers, and claims " generically known as the 'Alabama claims.' " The use of the words " acts committed" admittedly excludes the questions of block- ade-running and concession, of belhgerent rights from the arbitration, and the specifi- cation of the claims as " claims generically known as the 'Alabama claims' " limits them to the class of direct claims ; which it has, I trust, been abundantly shown were alone known at the time as "Alabama claims." Mr. Fish attaches some importance in support of his views to the words "growing out of" and " generically," but the first phrase is taken from Mr. Adams's letter of the 31st o£ October, 1863, when, in forwarding " a number of memorials and other papers connected with the depredations of the vessel formerly called the " Oreto," and now the " Florida," he observed that " the conclusion to which it would seem that both. Governments arrive in regard to the disposition to be made of the claims growing out of the depredations of the 'Alabama' and other vessels issuing from British ports ap- pears to render further discussion of the merits of the question unnecessary." No men- tion whatever of indirect or constructive claims had been made at this time, and the claims to which Mr. Adams referred are manifestly the claims for actual damages. When the same expression is used again it must be taken to have the same mean- ing. I will not follow Mr. Fish into the etymology of the word "generically." "Generi- cally known as the 'Alabama claims'" seems to be the same as the "class of claims known as the 'Alabama claims,' " the phrase used in the Stanley-Johnson Convention, and serves to distinguish this class of claims from every other class of claims which the United States Government might have to prefer. The "Alabama claims" have been designated as a "class of claims" to avoid the misapprehension, which at one time seemed to have occurred to Mr. Seward, that the words "Alabama claims" might be construed as meaning only claims on account of injuries sustained from the one vessel "Alabama." The phrase itself goes very far to define its own limited meaning; for, while it is quite intelligible that, for brevity's sake, the name of one vessel should stand for others of a particular class, of which it is the principal example, it appears to be contrary to all reason that the name of such a particular ship should be used to describe claims for general national losses, such as those for the decline of the commer- cial marine of the United States and the prolongation of the war. Mr. Fish, with reference to the remark in his dispatch of the 27th of February, that the indirect claims are covered by one of the alternatives of the Treaty, states that the Governinent of the United States are " of the opinion that they are covered by the alternative power given to the Tribunal of Arbitration of awarding a sum in gross, in case it finds that Great Britain has failed to fulfill any duty, or of remitting to a Board of Assessors the determination of the validity of claims presented to them, and the amounts to be paid." The Vlth Article of the Treaty, after stating the three Rules, proceeds : " Her Britan- nic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing Rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose ; but that Her Majesty's Government .... agrees that in de- ciding the questions between the two countries arising out of those claims, the Arbi- trators should assume," &o. Article VII provides that " the said Tribunal shall first determine as to each vessel sepa- rately whether Great Britain has, by any act or omission, failed to fulfill any of the du- ties set forth in the three foregoing Rules, or recognized by the principles of interna- tional law not inconsistent with such Rules, and shall certify such fact as to each of the 512 TREATY OF WASHINGTON. said vessels. In case the Tribunal find that Great Britain has failed to fulfill any duiy or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross to be paid by Great Britain for all the claims r^erred to it." All the claims must mean all the " claims mentioned in Article I." Mr. Fish admits that the indirect losses are not covered by what he terms the other " alternative " of the Treaty, viz, the provision in Article X, that " in case the Tri- bunal flpds 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 ac- count of the liability arising from such failure, as to each vessel, according to the ex- tent of such liability as decided by the Arbitrators." * Mr. W. Beach Lawrence, the distinguished American publicist, in a letter dated the 20th ultimo, and published in the Springfield Independent, observes: "As in each case determined against Great Britain, the Board of Assessors are, by Article X, to as- certain and determine the amount which shall be paid by Great Britain to the United States on account of the liability arising from such failure as to each vessel, according to the extent of such liability as decided by the Arbitrators, there would seem to be no room for indirect damages. Besides the diflieulty of deciding on a claim indeter- minable in its nature, there would be the further embarrassment of apportioning the amount of injury growing out of the acts of each vessel in the general account. Is it possible that the Assessors are to decide what part of the prolongation of the war is to be assigned to each vessel ? I am aware that there is a provision that the Arbitra- tors may, after they have decided as to each vessel separately, award a sum in gross for all the claims referred to them. I cannot, however, perceive how that provision in any wise extends the scope of the power of the Tribunal." Her Majesty's Govern- ment cannot perceive it either. By both Articles VII and X, the Arbitrators are to determine the extent of the lia- bility of Great Britain as to each vessel, i. e., as to each cruiser separately. Through- out, the claims are strictly connected with the acts of the cruisers. Mr. Fish acknowl- •edges that, if the claims are considered in detail, the indirect losses cannot be taken into account; and yet, as he states, they have been "presented at Geneva, not as claims for which a specific demand was made, but as losses and injuries consequent upon the acts complained of, and necessarily to be taken into equitable consideration on a final settlement and adjudication of all the differences submitted to the Tribunal." I have already pointed out that "claims" and not "differences" have, been sub- mitted; and Mr. Fish's contention would amount to this, that, in awarding damages for a specific want of due diligence in regard to a particular vessel, the Arbitrators should take into consideration a variety of grievances not necessarily connected with that vessel, and which could not be made matters for a claim if examined in detail, and award a gross sum not proportioned to the want of diligence or to the injury thereby occasioned, but swelled by the amount of all the injuries and losses of which the United States may have complained in all the correspondence of which the history of the cruisers forms part. That is to say, that the Arbitrators should give judgment in one matter and inflict a penalty for another matter. A principle so contrary to the ordinary practice of juris- prudence could not have been presumed by .the British High Commissioners, or by Her Majesty's Government, to have been intended to be introduced, unless the inten- tion was explained to them ; but, from first to last, no mention of indirect losses was made in connection with the payment of a gross sum. If the American High Commissioners desired that the alternative of the award of a gross sum should cover the claims for indirect losses, why were they not more explicit ? and why did they not require some provision to be made in the Treaty to explain this for the guidance of the Arbitrators ? Mr. Fish says that " the claims for indirect losses were presented to the British Com- missioners as solemnly and with more definiteness of specification than were presented by them to the American Commissioners the claims for alleged injuries which the people •of Canada were said to have suffered from what was known as the Fenian raids." But the indirect losses were never " presented" as " claims," and are even now said not to be "presented as claims " for which a specific demand is made ; while the Fenian raid "claims" were proposed for consideration on the 4th of March; again "brought before" the High Commission on the 26th of April, when the British negotiators said that " they were instructed to present these claims," and it was not until the 3d of May that they said that "they would not urge further that the settlement of these claims should be included in the present .Treaty. And that they had the less difficulty in doing so, as a portion of the claims were of a constructive and inferential character." Thus while the American indirect losses were only mentioned once, and then as it were incidentally, the Fenian raid claims were repeatedly and formally presented, and when their withdrawal from the negotiation wag agreed to at its olos'e, it was with a remark which could have had no just bearing, had not it been believed that all con- COREESPONDEJfCE RESPECTING GENEVA ARBITRiTION. '513 strnctive and consequential claims had bsen withdrawn and excluded on the American side also. Mr. Fish expresses doubts as to the points raised in my letter of the 20th of March, that the Washington Claims Commissioners have, and the Arbitrators have not, power to decide upon the extent of their own jurisdiction, and that no words similar to those conferring that power are to be found in the articles relating to the Geneva Arbitra- tion. It will be seen, on comparing the Treaty of Washington with the Claims Convention between Great Britain and the United States of the 8th of February, 1853, that the words which I had quoted from the XlVth Article of the former are identical with the words used in the Illd Article of the latter, under which the Claims Commissioners were empowered to give, and did undoubtedly give, decisions as to the extent of their jurisdiction; as for instance, in the claims for Texas bonds of James Holford's execu- tors, and Philip Dawson, and for Florida bonds of Heneage W. Dering, and in other oases.' (See Senate Executive Documents, No. 103, 34th Congress, 1st session, pp. 63, 64.) The Articles engaging to consider the results of the proceedings of the Tribunal, and of the Claims Commission, respectively, as tinal settlements. Articles XI and XVII, ar also adopted from the Convention of 1853, Article V ; and had it been desired to give the same powers of jurisdiction to the Arbitrators as to the Commissioners, a clause sim- ilar to that in the XIV th Article would have been inserted to express it. In the absence of such a clause the jurisdiction of the Arbitrators remains restricted to the particular claims " known as Alabama claims," submitted to them in Article I. Her Majesty's Government cannot admit that a power which, when it is designed to be given to the Claims Commissioners in one part of the Treaty is given in express words, can be inferentially assumed to be given in another part of tbe Treaty to the Arbitrators, by assigning a broad signification to the term " question " in the lid Article. The questions which the Arbitrators are to examine and decide are obviously all questions that may belaid before them by the respective Governments, in preferring and refuting the panicular claims on which their judgment is requested, and the Article must be read in connection with the succeeding Articles III, IV, andV, provid- ing bow the Cases, Counter Cases, evidence, and arguments are to be brought before them. Mr. Fish cannot mean that the Arbitrators may decide " any questions " not coming within the terms of the reference to the Tribunal. If that were to be the case. Her Majesty's Government might bring forward as a set-off against the "Alabama claims" the questions of the injury done to British trade by the blockade, or the Fenian raids, or po-isibly other questions. In short, a scope would be given to the Arbitration which the United States Government could not have contemplated, and would probably be unwilling to admit. Mr. Fish states that '• tbe United States calmly submitted to the Commission the de- cision of its jurisdiction" over the Cotton Loan Claims ; but this statement does not appear to be at all borne out by the "Argument for the United States on motion to dismiss" these claims. The United SfatdS Agent moved for the dismissal of the claim, as not being included under the Treaty, and plainly notified that the United States refused to poruiit it to be considered as included; his argnraent being that there was a consfitntioual pro- vision which prevented the payment of such claims, that this was known to the American Commissioners when negotiating the treaty, to the American Government when accepting it, and to the Senate when ratifying it, and that it was impossible for the United States to pay or to consider the question of paying the claims. " It must be borne in mind," he said, " that at the time of this correspondence, as well as at the time of the conclusion and ratification of the Treaty, the Constitution of the United States contained an express prohibition of the assumption or payment of these debts by the United States, or by any State. That every ofiScer of the United States, executive, legislative, and judicial, was thus bound by the supreme law of the land and by his oath of ntfioe to treat as utterly null any provision of any Treaty or statute in contravention of that constitutional prohibition, under penalty of impeach- ment or its equivalent." The Agent concluded by asking " the dismission of the claim on the ground specified in his motion." In short, he positively declared that no award unfavorable to the United States would, or could, have been accepted and paid. There are several other statements made by Mr. Fish which are open to reply, but I have considered it sufficient, for the purposes of this dispatch, to confine my comments to those which bear more immediately on the negotiation and interpretation of the Treaty. I am, &o., ' ' GRANVILLE. 33 A— n 514 TEEATY OF WASHINGTON. [From British Blue Book "North America," No. 9, (.1872,) p. 18.] No. 48. Sir E. Thornton to Earl Granville} [Extract.] Washington, May 13, 1872. (Eeceived May 26.) I paid a visit to Mr. Fish at the State Department on the 9th instant, ■when he read me a Dumber of telegrams which had recently passed between hinaself and General Schenck relative to conversations which your Lordship had held with the latter on the subject of the indirect claims. Mr. Fish appeared to think that not only did Her Majesty's Govern- ment declare that the right to present claims for indirect damages was not granted by the Treaty, but that it further wished to compel the United States to recognize and admit that it was so. Mr. Fish added, that as his Government had always, and in the most formal manner, declared and argued the contrary, it would be a humiliation to which the United States could not submit, now to confess that the presenta- tion of the indirect claims by the United States Government was made in spite of its knowledge that those claims were not comprised in the Treaty. I declared to Mr. Fish that I was convinced that, however sat- isfied I was that Her Majesty's Government maintained its own opinion on the subject, I did not imagine that it had any wish to force the United States Government to hold or declare the same opinion. But Mr. Fish expressed his opinion that there was now little chance of the Treaty being carried out; and he did not hesitate to ground it upon his belief that Her Majesty's Government had no desire for its con- tinuance. It is needless to trouble your Lordship with all the arguments which I used to combat this opinion. I thought it expedient to send your Lordship a short telegram on the subject, and on the receipt of your satisfactory answer^ on the following day showed it to Mr. Fish, who seemed much relieved by its contents, and still more gratified when I informed him that your Lordship had communicated to General Schenck a Draft Treaty Article such as Her Majesty's Government could accept. I had the honor to receive a copy of that article during the night of the 10th instant. Not knowing whether Mr. Fish had also received It, I wrote to him early in the morning of the 11th instant, informing him that I had received the document in question, and that if it had not reached him I should be glad to show it him. He at once came to my house, said that he had also received a copy, and upon my asking him what he thought of it, he answered that it had struck him favorably. I did not see Mr. Fish again till yesterday afternoon, when he told me that he had submitted the Article to the President, who was like- wise favorably impressed with its contents, and had decided that it should be communicated to the Senate for its consideration and advice. Mr. Fish added, that he had telegraphed to that effect to General Schenck on the afternoon of the 11th instant. ' The substance of this dispatch was received by telegraph on the 10th of May. ''■ Lord Granville had informed General Schenck that Mr. Pish was under a complete mistake. We desire to maintain the Treaty; we do not desire to force the United States to acknowledjre that the indirect claims do not by the Treaty come under the jurisdiction of the arbitration. But we decline to assent to any contrary understand- ing on our part. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 515 Mr. Fish stated that it would be submitted to-day to the Senate, and with it copies of the four notes which had passed between y.our Lordship and General Schenck on the subject of the indirect claims, and of some recent telegrams between the latter and Mr. Fish. I told Mr. Fish that, in my opinion, the wording of the Draft Article was very clear, and, as far as I could judge, was in exact accordance with the views which he had recently expressed to me in his conversa- tions upon the subject; I therefore ventured to entertain a hope that, if it were acceptable, it would be accepted as it stood. Mr. Fish said that he did not himself see anything that need be changed in the substance of the Draft Article, though one or two Senators were of opinion that some of the words might be changed so as to render the meaning more clear with reference to the principle which it was intended to lay down. But he thought that this might arise from the difference of interpreta- tion which was sometimes given in the two countries to the same words. No. 49. General ScliencJc to Mr. Fish. [Extract. ] ]sfo 225.1 Legation of the United States, London, May 14, 1872. (Received May 27.) ' Sir: Since my No. 216 on the 2d instant, our correspondence by tele- graph has been so constant and full, that I must refer to that mainly for a connected history of what has transpired. It would be vain to attempt to give anything like a detailed account of what passed or was said in the almost daily interviews and conversa- tions, and sometimes much oftener than daily, find often lasting for hours at a time, which took place between Lord Granville and me. I sought, as my telegrams will show, to keep you continually, regularly, and clearly informed as to results, and with my last dispatch (No. 224) I furnished you copies of all the notes and written matter which came to me with the new Treaty Article proposed by this Government. Perhaps, however, I cannot better report or explain to you the man- ner and spirit with which 1 sought to present and urge the views of our Government in this contention about the presentation of the claims tor indirect damages, than by forwarding to you the annexed copy of a paper which I read to Lord Granville on the morning of the 10th instant. , .„ . ,, , By referring to my several telegrams of the 9th, you will observe that at the end of that day, it seemed as if all hope of agreement between the two Governments must be given up. Her Majesty's Government had expressed their decision against the suggestion ot a new Article as a mode of settlement, and I had informed them that no note could be accepted by the President and assented to which did not embody the conditions expressed in your telegram of the 27th of Aprih But early next morning came the message from Lord Gran vile ask- ing me to telegraph you immediately that a Cabinet would be held^that day, and that he wished me to meet him afterwards. i did not wait for the conclusion of the Cabinet meeting, but sought Lord Granville almost immediately at the Foreign Office. I had made 51 G TREATY OF WASHINGTON. up my mind to present once more to His Lordship, as briefly and yet as clearly as I could, a summary statement of the views of my Government, and the position, as I understood it, of the question between us. I had to this end very hastily prepared myself by reducing what I had to say to him to writing, in order that there might be no misunderstanding afterward of the points advanced, or of my language. This was the paper of which I send you a copy. Lord Granville came out of Cabinet to meet me. I read it to hipi, and placed as much of it as was copied in his hands. I afterward furnished him a full copy. He replied at once verbally by informing me that Her Majesty's Government would probably conclude to take the initiative and propose a Treaty Article, in which case the proposal in such form as it might be agreed to offer it, would be communicated to me after the Cabinet had decided; and afterward, on that day, the proposed article was delivered to rae. If my summing up that morning did not contribute towards bringing this conclusion to the correspondence and discussion, at least it did not prevent this Government from concurring in what I regarded as the only effective form of adjustment which appeared to remain to us. It is not for me to comment now on the merits of this plan of adjust- ment which has been placed before the Senate for consideration. Be- fore this dispatch can reach you, that body will probably have advised the President to accede to it, or will have refused its assent. I sincerely trust that the former will be the decision arrived at. This I venture to say, not from a desire merely to adopt what seems to be perhaps the only remaining chance of preserving a Treaty so important to the peace and interests of the two countries, but because I think the principle declared in this Article for future observance between the two nations is one which if settled and maintained must be of inestimable advantage to the CJnited States. With our chances of being generally neutral when Great Britain and other European States are belligerent, the benefits of the rule are to be principally and oftenest ours. Our continental posi- tion, our extended sea-coast, our numerous ports, the enterprising char- acter of our citizens, and the difftculty of restraining their spirit of ad- venture, surely make the rule that would thus be established more val- uable and more favorable to the United States than to perhaps any other country. All this we secure in exchange for the surrender of certain claims which we were pressing before the Arbitrators at Geneva, not with a view to pecuniary compensation, but only because they were a portion of the grounds of disagreement between us and Great Britain, upon which that Tribunal was empowered, for the sake of perfect peace, to make an award, while we ourselves did not hesitate to admit that it must be to our gain to have the decision against us. * # * I have the honor to be, sir, your obedient servant, EOBT. C. SCHENCK. [Inolosure in Ko. 49.] Summary of views of the United States on the indirect claims read % General Schench to Earl Granville on May 10, 1872. General Sohenok, in an interview with Lord Granville, summed up -what he regarded as the present position of the question between the two Governments in the foirowing remarks, which he had reduced to writing to prevent misunderstauding of his views or language : When we parted, after our long conversation yesterday, your last words to me were these: "I carefully avoid anything that may be construed into menace, but in conse- quence of the views and information you have presented to me yesterday and to-day I take an unfavorable view of the chances of settlement." Those words I felt it my CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 517 dnty to telegraph last night, as I told you I would, to my Government, and I added to them, " I told Lord Granville that I was of the same mind." It was painful to me beyond expression to have to do this— a grave thing to have to believe that the result of all the labor and care which led to the making of the Treaty of Washington— the end of all the hopes which it had inspired for the future of our two countries, and for the causa of civilization and the nations— was to be but failure, disappointment, and estrangement, instead of success, close and lasting friendship, and peace. I have not slept well on that conclusion to our interview. If this be the end, then I am well aware that each Government will, in one form or another, present its explanation to the world, all the States and peoples of which, it is no exaggeration to say, are waiting the issue of our attempts to come to a good under- standing; and each party will naturally seek to justify itself and to throw the blame on the other. , This must be my excuse, at the risk of too much repetition, for one more effort, which nnist now, in this pressure of time, be hastily and imperfectly made, to present the views and position of my Government in relation to the points on which we so unfor- tunately differ. The difficulty has its root entirely in the opposing interpretations given to the Treaty by the two Governments. The United States uuderstand that it was the intention of that instrument to provide a mode for the settlement, wiping away, and blotting out forever of all claims against Gi-eat Britain growing out of the acts of the Alabama and other such cruisers ; and they claim therefore to put forward, and have put forward, in their Case before the Arbitrators, the whole of their demandsfor damages, direct and indirect. This they insist they may rightfully do ; and that they are entitled to ask and expect of the Arbitrators a decision as to each class of claims, as to its admissibility before the Tribunal for con- sideration in the iirst instance, and if adjudged admissible, then such award as that High International Court constituted by the Treaty may think it just within the scope of their powers to make. But the United States have not desired or expected any award of com- pensation from Great Britain for the indirect damages. They have even been free to admit in advance that it would be better for their future advantage and the interest of nations generally that the judgment of the Arbitrators should be adverse to that class of claims. What they contend for is the right under the Treaty to submit them for con- sideration, as a known part of their demands against Great Britain ; and that it is i nportant to both countries and in the interest of peace and good feeling that every question in regard to such claims should bo solemnly considered and passed upon, so that they may disappear forever. Great Britain maintains that it is not within the meaning and intention of the Treaty that such claims should be placed before the Tribunal, or that they come within the province of the Arbitrators to consider and decide upon. The long argumentative discussion of this point has ended unfortunately in neither party being able to convince the other of the soundness of its interpretation. Each is bound to admit good faith and fair intention in the other. Both nations desire mutual and cordial friendship. Both are earuestly and sincerely desirous to maintain the Treaty. Some other way out of the difficulty, therefore, must be found if these objects are to be attained. Anticipating this irreconcilable disagreement on the point of interpretation, various expedients were suggested as probable means for escape from the dilemma, even be- fore the conclusion of the discussion had been reached ; but^none of these suggestions were adopted or acted on, and it is now unnecessary to revive or refer to them. At the last, in consequence of a conversation between himself and the British Minis- ter at Washington, Mr. Fish was led to believe that Her Majesty's Government might make a pronosal to the effect that they would engage that in the future, should Great Britain be a belligerent and the United States neutral, and should there be any failure on the part of the United States to observe their neutral obligations. Great Britain will make or advance no claims against the United States by reason or on account of any indirect, remote, or consequential results of such failure, and that, in consideration, of such stipulation, the United States shall not press for a pecuniary award of dam- ages before the Geneva Tribunal on account of the claims, respecting which Great Britain has expressed the opinion that they are not included in the submission, viz, the transfer of the American shipping, increased insurance, and the prolongatiou of the war. It such a proposal should be made by the British Goverument they were in- formed that the President would assent to it. But it was to be understood that there was no withdrawal of any part of the Case of the United States, but an agreement not to demand damages on account of those particular claims, leaving the Tribunal to make such expression of opinion as it might think proper on that question. A com- munication to this effect was made to the British Government, and a form of a note was given me containing in some sort a proposal of this kind to be submitted to my Government, but it was found to be in so many essential particulars different from the suggestion which was understood to have been made by Sir Edward Thornton, and 518 TREATY OF WASHINGTON. ■which bad coranienrled itself to Mr. Fish, that it was not assented to hy the President. A moditicatioa of this note was subsequently made, and it was submitted in an amended form. The modified note omitted or changed some portion of what was objectionable in the first proposal, but was still so far short of what is consistent with the views aud position of the United States that it could not be accepted. The grounds of objection to the proposal as framed and presented by this note I will hereafter state. There was then a suggestion made to Her Majesty's Government that their proposal might be submitted in the shape of a new article to be added to the Treaty of Wash- ington. This would effectually bind both nations for the future to the observance of the rule which they might agree on, and would remove, if properly and carefully framed, all objections made to an interchange of notes as a secure and effective mode of reaching the object in view. ° But Her Majesty's Government, it is understood, altogether decline, or have thus far declined, to open any negotiation to define by treaty the extent or limit of the responsi- bility of a neutral to a belligerent for indirect or consequential damages. I deeply regret this, and my Government regrets it ; and I will proceed to explain presently wherein it is thought a treaty stipulation has an advantage over any other form of agreement, and ought to be desired by both parties. But to return to the difflculty — nay, the impossibility — of adjusting the disagreement by an interchange of notes, if we must adopt the form and substance of the proposal offered in that shape by the British Government. In the first place, that proposal, as Great Britain appears to be only willing to present it, either directly stipulates for, or implies, a withdrawal or abandonment on the part of the United States of the indirect claims ; that is, to regard and treat them as eliminated from the case presented to the Arbitrators, and not to be in any way considered or adjudged as the subject of award by the Tribunal. The British Government holds — notwithstanding the principle that every tribunal must necessarily, by its very creation, possess an inherent right and power to decide questions relating to its own jurisdiction, considering inevitably and at the very threshold whether a matter brought before it is or is not one of which it can take cognizance — the British Government holds that the Arbitrators cannot look at the indirect claims even for the purpose of determining that they are inadmissible. This is not overstating their position, extravagant as it may seem, when they maintain that under the Treaty the United States had no right to put such claims forward in their Case. But the tjnited States not only maintains that the mentioning and putting forward of these claims is rightful, with a view to obtaining a judgment as to their admissibility, but -also hold that it was the intent and meaning of the Treaty that they should be submitted for whatever they may be worth, even if this has to be done only with a view to get rid of them as a cause of difference and complaint between the two countries. Now, the President of the United States, acting through his Agent at Geneva, can iput forward, withhold, or withdraw such portion of the claims as he may think proper. That is not denied. But if any of these claims are contemplated and intended bythe Treaty itself for submission, such withholding or withdrawing of them by the President alone is not an extinguishment of them. The power of the President of the United States is limited by the Constitution. He cannot of himself make a treaty ; nor can he alter, abridge, or depart from the spirit or intention of a treaty. To do that requires the assent, advice, and concurrence of the Senate. If the Treaty submits these claims, as he is of opinion it clearly does, to the consideration of the Tribunal, then his putting them into the Case, or his taking them out of the Case, does not dispose of them. If they are withdrawn by him, they are only laid away, preserved perhaps to be a future plague, unsettled ; kept as a possible source of irritation and complaint. Tbey can be extinguished only by some judgment of the prescribed Tribunal appointed for their consideration, or by being given up through the action of the whole treaty-making power exercising its constitutional functions in behalf of the nation. Thus you should clearly see the reason why the President may be able to agree not to press for a money-award on claims which he regards as now before the Tribunal, but to leave them to be disposed of or commented on by the Arbitrators, while he refuses to withdraw them as not being properly a subject for their consideration. There is objection, too, to the substance of the proposal made in the British note. The engagement, to be of value in the future, should be reciprocal. The note pro- fesses to make it so ; but how ? The offer of Her Majesty's Government is to agree that the view which they have heretofore presented of such indirect claims shall be their principle of future action and conduct ; and that at any time when the United States may bo a neutral, and Great Britain a belligerent, she will not advance auy claims incansistent with that principle. This is vague ; and yet it is limited and narrow. It is a vague undertaking to promise generally to adhere to a " view " or a " princi- ple," when there must I'e a search to ascertain what that view is, or principle is ; and it is a narrow undertaking which confines itself to an abnegation of the right to pur- COKEESPONDENCE RESPECTING GENEVA ARBITRATION. 519 sue certain specific classes of damages, wlien the particular kinds of injury out of which those damages may arise are only to he determiaed by comparison. There should he general words of description, and a clear enunciation of principle, in any rule that is to serve aa a law of action, instead of a reference only to special cases that have be- fore occurred; because no two cases can ever be exactly similar. A rule depending for its application only on tests of comparison would breed disputes instead of remov- ing them. A treaty stipulation might be made free of all these objections. In the first place there could be no question about its mutually binding force ; and in the next place, being the joint concurrent declaration of the two parties to it, re- duced to a single form of expression, it would have a precision not likely to be found in a collation or comparison of the several notes embraced in a diplomatic corre- spondence. Great Britain has not merely denied the right of the United States to put forward the indirect claims because she denies that the Treaty admits of any construction which will authorize their being considered by the Tribunal. She has also taken the alternative view, that if, by reason of any ambiguity in the Treaty, or any possible interpretation of it, such claims could be brought forward by the United States, it is not to be supposed for a moment that she ever intended to agree to submit to arbitra- tion demands upon her of such character and nature that they might be dangerous to the very existence of any nation, and make the condition of a neutral possibly worse than that of a belligerent. To insist that the Treaty is so clear in its terms as in no sense to admit of the American interpretation, is only going back to and begging the question which has been fruitlessly discussed. But if it be so clear in the meaning, then Great Britain, by such a treaty stipulation, yielding nothing, giving no consideration, would secnre immunity for the future against a class of claims which she asserts to Joe always dan- gerous and improper to be made. But, on the other hand, if the Treaty does admit of the American interpretation, Great Britain would obtain that immunity for the future not only without cost or sac- rifice, but with the additional advantage of escaping from an obligation into which, she avers, in that case, she was unwittingly drawn, and which she regards as so danger- ous that, if it does exist, she would rather repudiate a solemn treaty than abide by what she has done. What, then, is it that Great Britain will gain if a new article prescribing a rule against claims for indirect damages be added to the Treaty ? She will have the Treaty with all its benefits to her, as it now stands, remain intact. She will be relieved from the responsibility on the one hand of answering to any award against her which may be made by the Arbitrators in case the American interpretation is sustained, and on the other from the deplorable alternative of abrogating her own solemn act. And she will obtain formal and certain security for the future that she is never to be held to answer for damages of a kind which she asserts are so dangerous and uncertain that they ought to be resisted. Is she prepared to hold back from an invitation to offer or concur in what must bring such results ? What will be the gain to the United States ? The settlement of a safe rule for the future, and the saving of the advantages to their interests, which are to be found in the friendly adjustment which was thought to have been made of all the questions likely to disturb the relations of the two countries, at the cost of giving up that por- tion of their demands for past injuries which they have been pressing, not with a view to obtaining pecuniary compensation, but only in the assertion of their right to have such an award from the Tribunal at Geneva as will make the Treaty of Washington what it was really intended to be, a means for wiping away forever from between these kindred nations all differences and complaints as well as all claims. [From British Blue Book "North America," No. 9, (1872,) p. 19.] :so. 50. Sir U. Thornton to Earl Granville} Washington, May 14, 1872. (Received May 26.) My Lord : I have the honor to inform your Lordship that, during a conversation which I had late last night with Mr. Fish, he said that the public was extremely anxious and intensely curious as to what had lately 520 TEEATY OF WASHINGTON. passed between the two Governments on the subject of the indirect claims, and that he thought it would be admirable to take some measure to allay this impatience. He suggested that it would be well either to send to Congress in open session, or to publish, the four notes which passed between your Lordship and General Schenck on the subject of claims for indirect damages, two telegrams relative to the presentation of the British Counter Case, and a dispatch from General Schenck to Mr. Fish, which the latter read to me. To the publication of the three latter there did not seem to be the slightest objection, nor, as 1 thought, to that of the four notes. But Mr. Pish did not seem satisfied with my opinion, and said that, as he did not wish to do anything which might at all embar- rass Her Majesty's Government, he would rather that I would telegraph your Lordship upon the subject, in the hope that you would give yoar assent to the publication of the above-mentioned documents. I have, &c., ED WD. THORNTO^iT. [From British Blue Book "North America," No. 9, a872,) p. 20.] No. 51. I]arl Granville to Sir U. Thornton. Foreign Office, May 14, 1872. Sir : I asked General Schenck to-day whether it would not be desir- ableto draught the identic note, to be addressed by the British and United States Agents to the Arbitrators, communicating to them the Treaty Article if it should be concluded. General Schenck assented to this suggestion. 1 am, &c., GEANVILLB. [From British Bhie Book " North America," No. 9, (1872,) p. 20.] E"0. 52. Uarl G-ranville to Sir E. Thornton. Foreign Office, 2lay 16, 1872. Sir : As you have informed me by telegraph that the correspondencfr which has passed between Her Majesty's Government and the Govern- ment of the United States, respecting the claims for indirect losses put forward in the Case presented on the part of the United States to the Tribunal of Arbitration at Geneva, has been presented to open Con- gress by Mr. Fish, I have to state to you that the correspondence will also be published in a supplement to the London Gazette of to-morrow, together with the dispatch which I addressed to you on the 13th instant, commenting, for your information, on some of the historical parts of Mr. Fish's last dispatch. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 521 I mentioned to General Schendt that this would probably be done. ToQ have been informed of the substance of this dispatch by tele- graph. I am, &c., GRANVILLE- [From Britisli Blue Book " North Ameriou," No. 9, (1872,) p. 20.] No. 53. Sir E. Thornton to Earl Granville.^ [Extract.] Washington, May 17, 1872. (Received May 28.) T have the honor to inclose a copy of the New York Herald of the 15th instant, in which are published copies of the President's Message to the Senate in secret session, and of the documents which accompa- nied it. It is supposed that copies of these documents must, by some surreptitious means, have been abstracted from the Senate, and it is said that the whole of them were telegraphed to New York during the night of the lith instant, at the expense of the New York Herald^ which published them on the morning of the loth instant. Mr. Pish was informed by telegraph during that day that certain doc- uments had been published, but could not discover whether the whole of them had appeared. He, however, at ouce forwarded to Congress in open session the four notes which have passed between your Lordship and General Schenck on the subject of the claims for indirect damages- On the arrival here of the New York Herald, it was found that all the documents sent to the Senate on the 13th instant, with the exception of the memorandum inclosed in your Lordship's note of the 20th of March last, had been published. Mr. Fish told me yesterday that, in consequence of this publication, it was the opinion of the President and of himself, that it would be expedient to relieve the Senate of the in- junction of secrecy with regard to these documents, so that they might become officially public ; but that they were indisposed to do so if I thought Her Majesty's Government would object to it. I replied that, as the documents had been made public, and as it was evident that they were really copies of those which had been sent to the Senate, I could see no objection to their being offlcially published, in accordance with the President's wish ; nor did I think it worth while to beg Mr- Fish to wait until I should have telegraphed to your Lordship and re- ceived an answer. But I at the same time strongly expressed my opin- ion that the discussion with regard to the Draft Treaty Article should not be held in open session, in favor of which a motion had been made on the 13th instant, but defeated. Mr. Fish entirely agreed with me that a public discussion would be most inexpedient. With reference to the copy of Mr. Fish's telegram to General Schenck of the 27th ultimo, there is no doubt that, on that day, it was he wha suggested that your Lordship should, in answer to his dispatch to Gen- eral Schenck, make a proposal of the nature described in my telegram forwarded on the same day. The utmost that I did was, on his urging me to give my private opinion upon the suggestion, to say that I thought, it might, with some modifications, be taken as the basis of an arrange- iThe substance of this dispatch was received by telegraph on the 17th of May. 522 TREATY OF WASHINGTON. ment; but I did not, and of course could not, state, on hearing such a suggestion for the first time, that Her Majesty's Government would or would not make a proposal of the nature indicated by Mr. Fish. His telegram to General Schenck, of the 27th ultimo, was sent after I had received, and in consequence of, your Lordship's telegram of the same day, the contents of which I communicated to him, and in which jour Lordship stated that the apparent absence of instructions to the American Minister, with whom the negotiation was being conducted, was a great obstacle to an arrangement. [From British Blue Book " North America," No. 9, (1872,) p. 21.] No. 54. Uarl Granville to Sir E. Thornton. Foreign Office, May 17, 1872. Sir : I have received your dispatch of the 30th ultimo, reporting your •conversation with Mr. Fish on the subject of the indirect claims; and, in reply, I have to acquaint you that Her Majesty's Government approve jour guarded language on this subject, as reported in your dispatch. I am, &c., GRAlSfVILLB. [From British Blue Book "North America," No. 9, (1872,) p. 21.] 'So. 55. Earl Granville to General Sohench. Deal, May 17, 1872. My Dear General Schenck : If the Senate agree with the Presi- dent of the United States to adopt the proposed Treaty Article, I shall instruct Sir Edward Thornton to sign it, in order to save time. I shall be glad to have your opinion as to how the same object could be obtained with regard to the notes communicating the Treaty Article to the Tribunal of Geneva, of which we agreed I had better prepare a draft. Should I remit it to you or to Sir Edward Thornton ? Yours, sincerely, GRATjTVILLE. [From British Blue Book "North America," No. 9, (1872,) p. 21.] Ko. 56. General Schenck to Earl Granville. [Extract.] 58 Great Cumberland Place, Hyde Park, May 18, 1872. (Received May 18.) It appears to me that, when you instruct Sir Edward Thornton in regard to signing the Treaty, if it should be concluded, it would be as COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 523 well to Lave the joint note to the Arbitrators, bringing it to their notice, signed at the same time by him and Mr. Fish. If it were not for the greater convenience, and saving of time when time may be precions, I confess I should have been glad if you and I could have put our hands and seals to it together. [From British Blue Book " North America," No. 9, (1872,) p. 22.] No. 57. Sir U. Thornton to Earl Granville.^ (Extract.) Washington, May 20, 1872. (Received June 2.) On Sunday I called uj)on Mr. Fish at his own house, and having pre- viously heard that the Committee on Foreign Relations had agreed by a majority of 4 to 3, or, as some said, of 5 to 2, upon its report on the Article, and had actually made it to the Senate in secret session, I asked Mr. Fish whether he could tell me what the amendments were which had been made to the Article. He replied, that he was not in possession of the words of the Article, as it had been reported by the Committee to the Senate, but would endeavor to describe them to me. He said that the first paragraph of the Article, down to the words " Great Britain," would remain the same ; but that, with regard to the next paragraph, the Committee had objected that Her Majesty's Gov- ernment had not yet declared, but was only now going to declare, by the present article, that the principle involved in the second contention would guide its conduct for the future. The Committee also thought it better that the " Government " should be substituted for the "President" in the third paragraph, and as it seemed to have an objection to the phrase, " adhering to its conten- tion," it had been proposed that it should be altered, and that both Governments should then agree that their conduct in future, and in their relations with each other, should be guided by the above-men- tioned principle. Mr. Fish said that the committee supposed that neither Government wished to bind itself in this Article as to its rela tions with any other Power. If Mr. Fish's description is correct, it would not seem that any alter- ation has been made in the substance of the Draft Article. Your Lordship will have perceived that, in sending the Draft Article to the Senate for its advice, the President quoted the precedent of the Treaty of 1846 on the Northwest Boundary. If the Draft Article should be now approved, and if the same precedent is still to be followed, the Article will have to be signed, and again submitted to the Senate for its sanction. This must either be done before the 29th instant, the day now fixed for the final adjournment of the session, or the President will have to summon an extraordinary session of the Senate, for the purpose of submitting to it the signed Article. 'The substance of this dispatch was received by telegraph on the 20th of May. 524 TREATY OF WASHINGTON. No. 58. General Schenclc to Mr. Fish. jSTo. 239.] Legation op the United States, . London, May 25, 1872. (Eeceived June 5.) Sir : I forward herewith copies of a correspondence which has taken place between Lord Granvi.le and myself in regard to the proposed identic notes to be communicated to the Arbitrators at Geneva, in case of the new Treaty Article being adopted, together with a copy of His Lordship's original draught of said identic notes sent to me in his letter of the 20th instant. I have the honor to be, sir, your obedient servant, (In the absence of General Schenck,) BENJAMIN MORAN. [Inclosnre 1 in No. 58.] Earl Granville to,General Schenclc. Foreign Office, May 20, 1872. Sir: We agree that it might save time, in case of the Treaty being adopted, if I •were to prepare a form of notes from Her Majesty's Government and the Government of the United States, coiiimunicatiDg the Treaty to the Tribunal of Arbitration at Geneva. I therefore send you tlie draught -which I have prepared. I have the lionor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. [Inclosnre 2 in No. 58.] Draught of Identic Note to the Arbitrators. The undersigned, Agent of Her Britajinic Majesty, (Agent of the United States,) is in- structed by Her Majesty's Government (the Government of the United States) to transmit to the accompanying Declaratory Convention, concluded on between Her Britannic Majesty and the United States of America, by which it is provided that, in consideration of the agreement therein set forth, the President of the United States vrill make no claim on the part of the United States in respect of the indirect losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration on the 15th of December, viz : " The loss in the transfer of the American commercial marine to the British flag, the enhanced payments of in- surance, and the addition of a large sum of the cost of the war and the suppression of the rebellion." In accordance with the provisions of this Conveution the undersigned has the honor, on the part of the Government which he represents, to request that no claims for indirect losses as aforesaid may be entertained by the Tribunal. [Inclosnre 3 in No. 58.] General Schenclc to Lord Granville. Torquay, May 22, 1872. My Lord : Your note of the 20th, covering a draught of a form of note suggested for communicating the new Treaty Article, if adopted, to the Arbitrators, was delivered to Mr. Moran last evening, and reached me here this morning. COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 525 I shall hasten to submit it by telegraph to Mr. Fish, so that, if the occasion comes, no time may be lost in having it ready as agreed on. I have the honor to be, with the highest consideration, your Lordship's most obedi- ent servant, EOBEET C. SCHENCK. [From British Blue Book "North America," No. 9, (1S72,) p. 23.] Ho. 59. Mr. Fish to General Schench. ( Gommunioated by Mr. Moran, May 25, 11.45 a. 7».) [Telegraphic] The Senate will undoubtedly amend the proposed Article. The terms of the note to the Arbitrators cannot be fixed until the language of the Article is agreed upon. FISH. [From British Blue Book "North America," No. 9, (1872,) p. 23.] No. 60. Uarl Oranville to Sir E. Thornton. Foreign Office, May 25, 1872 — 3 p. m. SiE : I have given to the United States Legation a copy of the in- closed draft of preamble to a Treaty, in which the Article now before the Senate would be contained, supposing that the Article should come out from the Senate in a form which Her Majesty's Government could accept. You may give it confidentially to Mr. Fish, explaining to him that the preamble has been framed with reference to that contingency alone, and in order to save time in the two Governments comiug to an agree- ment on the terms of preamble if this contingency should be realized. I am, &c., GRANVILLE. No. 61. Mr. Fish to General Schenck. [Telegram.] Department of State, Washington, May 26, 1872. (Sent at 2.30 a. m.) The President having requested an expression by the Senate of their disposition in regard to advising and consenting to the formal adoption of the Article proposed by the British Government, as communicated in your telegram of May 10, that body has amended the proposed Article, and agrees to advise and consent to its adoption in the following terms : Down to and including the words Great Britain, the same as in the Article proposed; then the following: And whereas the Government of the United States has contended that the said claims were included in the Treaty ; and 526 TREATY OF WASHINGTON. Whereas lioth Governments adopt for the future the principle that claims for re- mote or indirect losses should not he admitted as the result of failure to observe n entral obligations, so far as to declare that it will hereafter guide the conduct of both Gov- ernments in their relations with each other: Now, therefore, In consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States, in respect of indirect losses as aforesaid, before the Tribunal of Arbitration at Geneva. Yon will, without delay, inform Lord Granville that, in pursuance of this action of the Senate, the President will negotiate a new Article in the terms and to the effect of the foregoing. You will also say to him that the two Houses of Congress have passed a concurrent resolution to adjourn sine die on the 29th instant, and that a treaty embodying the Article must be presented to the Senate and receive its approval. It is important, therefore, that authority be speedily given to Her Majesty's Minister here to sign the convention, if the British Government con- cludes to enter into the agreement. A copy of the Article ^ has been furnished to Sir Edward Thornton. 1 The differences between the Article suggested by Great Britain, submitted to the Senate May 13, and the article adopted by the Senate May 25, are shown in parallel columns below. The left-hand column gives the text proposed by Great Britain; the right-hand column shows the alterations made by the Senate : Whereas the Government of Her Britan- nic Majesty has contended in the recent cor- respondence with tlie Government of the United States as follows, namely : That such indirect claims as those for the na- tional losses stated in the Case presented, on the part of the Government of the United States, to the Tribunal of Arbitration at Geneva, to have been sustained by the loss in the transfer of the American com- mercial marine to the British flag ; the en- hanced payments of insurance ; the pro- longation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion — Firstly, were not included in the Treaty of Washington, and further, and secondly, should not be admitted in principle as growing out of the acts committed by particular vessels, al- leged to have been enabled to commit de- predations upon the shipping of a bellige- rent, by reason of such want of due dili- gence in the performance of the neutral obligations as that which is imputed by the United States to Great Britain ; and Whereas the Government of Her Britan-' nic Majesty has also declared that the prin ciple involved in the second of the conten- tions, hereinbefore set forth, will guide their conduct in future ; and Whereas the President of the United States, whilst adhering to his contention that the said claims were included in the Treaty, adopts for the future the principle contained in the second of the said conten- tions, so far as, to declare that it will here- after gnide the conduct of the Government of the United States, and the two countries are therefore agreed in this respect. In consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States, in respect of indirect losses as aforesaid, before the Tj'ibunal of Arbitration at Geneva. Whereas the Government of the United States has contended that the said claims were included in the Treaty ; and Whereas both Governments adopt for the future the principle that claims for remote or indirect losses should not be admitted as the result of failure to observe neutral obligations, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other : Now, therefore, CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 52 T [From British Blue Book " North America" No. 9, (1872,) p. 25.] No. 62. Sir E. Thornton to Earl Granville.^ Washington, May 27, 1872. (Heceived June 8.) Mt Lord : I have the honor to inclose copy of a note, dated the 25tb instant, from Mr. Fish, and its inclosure, which I received yesterday at half past 1 p. m. It transmits copy of a resolution of the Senate, which was agreed to at half past 8 p. m. of the 25th instant, and which recom- mends to the President the negotiation with the British Government of an Article supplementary to the Treaty of Washington of May 8, 1871, to be ratified afterward by the Senate in the terms thereinalter men- tioned. Mr. Fish had, during the night of the 25th instant, given me what he believed to be the words of the Article as adopted by the Senate, but he could not guarantee their being correct. 1 thought it best, however, to telegraph them at once, though conditionally, to your Lordship, and they afterward turned out to be the exact words adopted by the Senate. Your Lordship is aware that the whole of the discussion has been carried on in secret session, and as much annoyance was felt at the unauthorized publication by the New York Hei'ald of the confidential documents which had been sent to the Senate on the 13th instant. Senators have been generally extremely reticent as to what has passed in the secret sessions. irr"" From the best information, however, which I can obtain, I should imagiue that the Committee on Foreign Relations, by a vote of 6 to 1,. agreed to report an Article very neai'ly in the words In which it has been finally adopted by the Senate. It was reported to the Senate on the 22d instant, and was discussed on that and the three following days for several hours ; the session on the 24th instant lasted for eight hours, finishing at 11.45 p. m. The majority by which the inclosed resolution was passed, has been variously stated, but I am inclined to think that the numbers were 43 to 8. It is said that several Senators were absent, and that some of those who were present refrained irom voting. I have, &c., EDWD. THORNTON. [Inclosure 1 in No. 62.] Mr. Fish to Sir E. 'Thornton. Department of State, Washington, May 26, 1872. Sir : I have the honor to inclose a copy of a resolution of the Senate of the United States, expressing its willingness to advise and consent to the adoption of a supple- mental Article to the Treaty of Washington of May 8, 1871. I have, &.C., ' HAMILTON FISH. [For inclosure 2 in No. 62, see p. 526.] ^ The substance of this dispatch was received hy telegraph on the 27th of May. 528 TREATY OF WASHINGTON. IsTo. 63. Mr. Fish to General Schencl: No. 213.] Department op State, Washington, May 28, 1872. Sir: I have to acknowledge tbe receipt of your dispatch of the 14th instant, No. 225, relating to the proposed new Article to the Treaty of May 8, 1871, and the Memorandum which accompanied it. That Mem- orandum is a very able and comprehensive review of the case, and pre- sents the position of the United States, in the main, very fully. The object of the United States in insisting on retaining the indirect claims before the Tribunal was : I. The right under the treaty to present them. II. To have them disposed of and removed from further controversy. III. To obtain a decision either for or against the liability of a neutral for claims of that description. IV. If the liability of a neutral for such claims is admitted in the future, then to insist on payment by Great Britain for those of the past. V. Having a case against Greitt Britain, to have the same principle applied to it that may in the future be invoked against the United States. I am, &c., HAMILTON FISH. No. 64. General Schenck to Mr. Fish. [Telegram.] London, May 28, 1872. (Received at 1.15 a. m.) I communicated your telegram of yesterday to Lord Granville. He submitted it to the Cabinet, who took it under long consideration. He has just given me their answer. It is as follows : Her Majesty's Government are of opinion that the definition by the Senate of the principle which both Governments are prepared to adopt for the future is so vague ttiat it is impossilile to state to what it is or is not applicable, and they believe that it would only lead to future misunderstandings. They prefer the article as they had draughted it, but have no obieetion to accept tlie article in the form proposed by the Senate, with the substitution of the words "of a like nature," for the words "fi)r remote or indirect losses," and the substitution of the words "such want of due diligence on the part of a neutral," for the words "the failure to observe neutral obligations." In reply to my inquiry of Lord Granville, whether any possible inter- pretation of the form proposed by the Senate would be held by them to prevent taking before the Arbitrators, to be considered by them in making their award, that part of the claims which relates to the cost of pursuit and capture of cruisers, he states that he must on behalf of Her Majesty's Government decline to answer my question as to the effect of the Article as altered by the Senate, or to state what possible construc- tion it may bear. Lord Granville says he has informed Sir Edward Thornton that he may tell you Her Majesty's Governmeat will not insist on the words you desire to omit from the preamble if you will give assurance in writing that the United States will agree to the form of note he proposed communicating the Convention on the part of the two COEKESPONDENCE RESPECTING GENEVA AEBITRATION. 529 <5-overnments to the Tribuaal of Arbitration. Lord Granville tells me confidentially that Thornton informed him you had stated that the Com- mittee on Foreign Affairs was ready to recommend the following form : And whereas the Goverument of the United States contend that the said claims were included m the Treaty, now the two Governments agree that the principle in- volved in the second oi the contentions hereinbefore set forth hy Her Maiesty'S Gov- ernment will guide their conduct in future in their relations with each other. Which proposal he says they were prepared to adopt. SOHENOK. No. 65. Mr. Fish to General Schenclc. [Telegram.] Washington, May 28, 1872. This Government declines to agree to the proposed altering of the supplementary Article. The establishment of the principle embodied therein has been its object in adhering to the presentation of the indi- rect claims, and its recognition is the inducement for not pressing them before the Tribunal. FISH. ^0. 66. General SchencJc to Mr. Fish. [Telegram.] London, May 28, 1872. (Received May 29, 7.30 a. m.) Lord Grauville has to-night, after another Cabinet, sent me the follow- ing further communication : \_Earl Granville to General SchencJc.'] I think it desirable at once to address to you the following observations in addition to what is stated in my letter of yesterday. Her Majesty's Government proposed 'an Article on the suggestion of the American Government ; that Article has been amended by the Senate. Her Majesty's Government are not able to find for it, as amended, any means or standard of interpretation ; the words appear to include the willful miscon- duct of a neutral, as well as a failure from want of due diligence. They cannot sup- pose this to be the meaning of the American Government. Her Majesty's Government hold all the claims made by the United States for losses which were the direct results of the acts of vessels mentioned in the Treaty, to be claims for indirect losses as the result of the failure to observe neutral obligations. Her Majesty's Government hold many of the claims for the losses above menrloned to be claims for losses which are remote as well as indirect, while resulting from, a failure to observe neutral obliga- tions. Her Majesty's Government are unable to signify An assent to a form of Article of which they cannot for themselves discover the scope, and with respect to which, owing, probably, to the difficulty of telegraphic communication, they have not been apprised of the meaning which the American Government attaches to it, or of the reasons which have led to its being proposed. If the Government of the United States think it desirable to give the information which Her Majesty's Government wish to receive on these points, and also think that for that purpose some adjournment of the time of meeting of the Arbitrators at Geneva should take place. Her Majesty's Gov- ernment would be ready to agree to any suitable proposal for that purpose, which they presume could only be done by a short treaty between the two Governmeuts. SCHENCK. 34 a— n 530 TREATY OF WASHINGTON, No. 67. Mr. Fish to General Schenck. [Extract,") No. 214.1 Depaetment op State, Washington, May 28, 1872; ,Sir: Late last evening Sir Edward Thornton called at my house;, having, as he stated, a telegram from Lord Granville, the general pur- port of which he mentioned, to the effect that the British Government having received the amendment proposed by this Government to their- proposed supplemental Article, would prefer their own draught, but that they would accept the proposed alteration, substituting, however, for the- words "for remote or indirect losses," the words " of a like nature," and for the words " failure to observe neutral obligations," the words " such want of due diligence on the part of a neutral." I told him frankly, and earnestly, that no change or alteration of any kind is admissible or can be entertained. I added that the United States now have a case against Great Britain, he interrupting me by saying, " the United States thinlc they now have a case." I proceeded,, saying ; that it made no difference, that having now a case, they desire to press it for a decision, or to have the principle of exemption of national liability for indirect losses established for the future ; that that principle is the equivalent or consideration of abstaining from a demand before the Tribunal for damages on account of the indirect losses ; that as now altered, the Article prevents the presentation of indirect claims against the UnitedStates,on account of the Fenian raids, while the British draught would exclude only claims arising from the acts of vessels, &c., and-under circumstances which may possibly never again occur. * * He then asked me about the preamble and the proposed note to the Arbitrators. In reply, I told him that it was useless to discuss either while his Government is contemplating any change in the Article. He said it might be well to have an understanding, in order to save time in case his Government accept the alterations made to the Article. In this view,I showed him a draught of a preamble which had been pre- pared in the Department, reciting, simply, that the two Governments, deeming it advisable that " there should be an additional Article to the Treaty signed at Washington on the 8th day of May, 1871, have for that purpose named as their Plenipotentiaries," &c., and saying that I see no occasion for any other recital ; and that as to the proposed note we will not sign it. He ask if there was any objection to their signing such note, to which I replied that we could not control them in that respect; they had the power to make such representations to the Tribunal as they thought proper ; that there might be no objection on our part to the former part of the proposed note, but that the latter clause was not necessary, as the effect of the Article accomplished what was then stated as a request ; that we would lay the Treaty, if agreed to, before the Tribunal, and our counsel would be guided by it, and would abstain from making any claim oa account of the indirect lossess ; but I desired not to be committed in advance of the agreement to the Article. I then referred to the question raised by your telegram, received yes- terday, as to the effect of the Article upon the claim for expense of pur- suit of the cruisers, and added that I did not think there could be any doubt, as both Governments had, through the whole correspendencCj. treated this as a direct claim. AVith some reserve and caution, and dis^ CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 531 claiming any autliority to speak, lie remarked that lie believed that claim had been created as a direct claim ; one on which the Tribunal was to pass, and decide whether or not it be one for which compensa- tion is to be made. I am this morning in the receipt of your telegram communicating the proposed changes to the Article which Sir Edward Thornton had communicated to me, as above mentioned. Lord Granville's evasion of a reply to your question respecting the pursuit, &c., of the cruisers, is significant and suggestive of caution. It is very possible that the whole thing will fail ; if so, this country will stand before the world having done all that it could to maintain the Treaty, and the civilizing principle which it established. The respon- sibility of failure must rest with Great Britain, who evidently will have shown a reserved intent, and an object of future advantage not avowed. * * * Much as this Government will regret the failure, it can stand it as well as can Great Britain. There are some things in the telegram received this morning which may require comment ; but I Incline to hope that what may seem arro- gant in Lord Granville's remark, that he will not insist on certain language in the proposed preamble, arises from the constraint of the telegraphic form of communication ; and so, too, the suggestion of a con- dition that assurance be given, in writing, of certain things. As presented in your telegram, these observations appear such as I am confident you would not have listened to, without repelling them. I confidently hope that their unpleasant appearance is to be attributed to the style of telegraphic correspondence. Sir Edward Thornton was told by me, some days since, what I under- stood would probably be the expected change recommended by the Senate committee. He has made some mistakes in transmitting it. I gave him no copy ; he must have reported it from memory. But what- ever it was, it was a thing under consideration, and the committee's report was changed by the Senate. I sec, therefore, no importance to be attached to a variance in the final action of the Senate from what was at one time expected ; although what was expected is different from what Lord Granville has understood to have been expected. I am, sir, your obedient servant, HAMILTON PISH. [From British Blue Bjok " North America," No. 9, (1872,) p. 27.] No. 68. Sir E, Thornton to Earl Granville.^ [Extract. J Washin&ton, May 28, 1872. (Received June 8.) With regard to the alterations which Her Majesty's Government de- sires should be made in the supplementary Article as recommended by the recent decision of the Senate, Mr. Fish said that it was out of the power of the United States Government to accede to them, or indeed to ' The substance of this dispatch was received by telegraph on the 28th of May. 532 TREATY OF WASHINGTON. any change of the words, as they had been decided upon by the Senate. He informed me that he had himself had a long discussion with the Committee on Foreign Eelations of the Senate upon the subject, and that he was convinced, from the nature of that discussion, that it woul'd be in vain to submit to the Senate the alterations now transmitted by your Lordship ; for that it had been expressly intended by the Commit- tee that the principle should be enlarged, and that the non-admittance of indirect claims should be extended to all such claims, and should not be limited to those of that particular class which were specified in the contention of Her Majesty's Government. These views of the Committee had been fully supported by the Sen- ate, who considered that the adoption of the wider principle with regard to indirect claims would be an equivalent for the consent given by the President that he would make no claim for indirect losses before the Tribunal of Arbitration at Geneva. He was convinced, from his knowl- edge of the feelings of the Senate upon the subject, that any further appeal to that body would have no effect whatever. From a great deal that I have heard from . other quarters, and from the extreme dif&culty with which the sanction of the Senate has been obtained to the supplementary Article, even as modified by it, I can- not but acquiesce in Mr. Fish's opinion that any further reference to the Senate would be of no avail. [From British Blue Book "North America," No. 9, (1672,) p. 30.] No. 69. Earl Granville to Sir E. Thornton. Foreign Office, May 28, 1872. Sir : I asked General Schenck to-day whether he had received any instructions from his Government to inform her Majesty's Government of what was the scope and extent of the principle which is proposed by them to us in the draught Article which has been recommended by the Senate. He answered that he had received none excepting those which were contained in the several telegrams which have been communicated to Her Majesty's Government, and he added that the general principle could only be laid down and the Interpretation made when cases arise. He referred me again for explanation of the position taken by the United States, including their view in relation to the necessity of a general rule with regard to indirect damages, to the remarks which he made to me and reduced to writing, and of which he furnished me a copy on the 10th of May. He added that the Article as passed by the Senate was connected-with what he had therein stated. I replied that I had no recollection of anything which he had written on the 10th of May, defining in any degree the scope or extent of such an Article as was now proposed. Our conversation was interrupted by the necessity of my attending a Cabinet. I am, &c., GRANVILLE. COERESPONDENCE RESPECTING GENEVA ARBITRATION. 533 ISTo. 70. Mr. Fish to General Schenck. [Telegram. — Extract.] Washington, May 29, 1872. Your telegram of last night received this morniiig. We cannot under- stand the objections which Lord Granville raises. He raises new issues, but suggests nothing in the direction of an agreement. Criticism and objection without suggestions lead to no results, and do not give assurance of a desire to harmonize differing views. You have informally suggested various modes of agreement, but Great Britain has met all with the demand to withdraw claims which we feel we were justified under the Treaty in presenting, while the obli- gations which Great Britain has in various forms proffered on her part have all been substantially the same, and have been vague, uncertain, ideal, and not likely ever to become available. The Article proposed by the Senate is fair, candid, and reciprocal. This Government has endeavored to express its views, objects, and meaning with respect to the principle embodied therein in the cor- respondence which has taken place, and in the communications which you have had with Her Majesty's Minister of Foreign Affairs. As the proposed Article, if it is to become a Treaty, must be signed and be submitted to the Senate for approval, but two days remain within which that approval can be had, and the Treaty forwarded to London to enable the ratifications to be exchanged in time to be pre- sented to the Arbitrators at their meeting in June. Further explanations of the views of the Government seem, therefore, impossible to be interchanged between here and London ; but you may be able to explain these views as they have been communicated to you from this Department. The President is extremely anxious to preserve a Treaty embodying and giving practical application to the doctrine of arbitration as a mode of settling international differences, and for that end has been willing to make large concessions. You will call the attention of Her Majesty's Minister to the fact that unless the Treaty be signed and approved by the Senate, so that the President's ratification can leave here the day after to-morrow and go by Saturday's steamer, it cannot reach London in time to be there ex- changed, and be presented to the Arbitrators at their meeting on 15th June. The suggestion of another treaty to adjourn the meeting at Geneva seems impracticable. Th,e Senate is in the last days of its session, with much important legislation pending, and every hour of its time pre- occupied. In the absence of any indication of a disposition on the part of the British Government to suggest anything to which this Govern- ment could assent, it would be impossible to secure enough of the time of the Senate to agree to a treaty which promises only further delay and procrastination. I regret not to see an indication of a desire or disposition on the part of the British Government to come to an agreement which will be honorable to this Government. If the British Government has any proposals to make they will be fairly considered, with the most sincere desire of a frank, friendly, and honorable agreement. We neither ask nor will consent to anything else. 634 TREATY OF WASHINGTON. The tone of Lord Granville's notes seems to assume that the Senate and this Government are to accept -what Great Britain may have sug- gested. Our view is very different. FISH. [FromBritish Blue Book "North America," No. 9, (1872,) p. 32.] No. 71. Uarl Granville to Sir E. Thornton. FoEEiaN Office, May 29, 1872. Sir: General Schenck called upon me early this morning, and in- formed me that he had received a telegram from Mr. Fish stating that the Government of the United States declined to agree to the alterations •which Her Majesty's Government had proposed, as set forth in my letter to him of the 27th instant, in the Article of the supplementary Treaty. Mr. Fish says that, holding to the opinion that the claims for indirect losses are admissible before the Arbitrators, the establishment of the principle embodied in the Article, or assented to by the Senate, has been its object in adhering to that Article ; and that the recognition of that principle by such supplementary Treaty will be the inducement for withdrawing the claims. General Schenck further said that he last telegraphed to Washington last night the whole of the communication, containing the additional obeservation which I made to him in myletter of yesterday, but that he did not expect to receive any further telegram from his Government before early to-morrow morning. He understood that Congress had agreed not to adjourn till next Monday, the 3d of June. Before that day, and probably to-morrow, he expects to receive a reply to the proposal to extend the time for arbitration beyond the 15th of June, and he there- lore thought he should not have to trouble me before noon to-morrow. I am, &c., GEANVILLE. [From British BUie Book " North America," No. 9, (1872,) p. 32.] No. 72. Memorandum ccmmunicated by General SchencTc, May 30, 1872. I assume that your object, like ours, is to affirm the principle that neutrals ai'e not to be held liable for indirect and remote damages which may be the result of a failure to observe neutral obligations, and to establish that principle, as a rule, to be observed between our two nations. Your proposed form of Article, as it was amended by the Senate, we think does that. You think it is too vague. We think your proposal, either as originally made, or as modified by your proposed amendment of the language of the Senate, would be altogether uncer- tain as a rule in practice, confines itself to hypothetical cases which may never occur; and, instead of recognizing and applying the general principle, limits the rule to some three classes, only indirect claims, being those which are put forth by the United States in their Case at Geneva. I 'CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 535 No. 73. ■General Schendk to Mr. Fish. [Telegram.] London, May 30, 1873. (Received 9 p. m.) Your telegram of yesterday received and communicated to Lore •Granville. He said he would confine himself to one remark, namely that your statement at the beginning from the words " he raises," dowi to the word " views," was inexplicable to him. What had been the course they had pursued 1 They had at the request of the Governmen of the United States draughted an Article founded on an idea of tha Government. The Government of the United States had amended tha Article, and in answer they had not merely stated an objection to th( amendment, but had draughted a re-amended Article for their considera tion. He said he would not make any farther argument until he ha( submitted to his colleagues the communication which had just beei made to him. I stated that I did not wish to go into any argument, bu would just state again what was my view of the present situation an( difference between us, though it was but repeating former statements I said to him, "I assume that your object, like ours, is to aflrmth principle that neutrals are not to be held liable for indirect and-remot damages, which may be the result of a failure to observe neutral oblige tions, and to establish that principle as a rule to be observed betwee: our two nations. Tour proposed form of Article, as it was amended b the Senate, we think does that. You think it is too vague. We thlnl your proposal, either as originally made or as modified by your propose amendment of the language of the Senate, would be altogether uncertair as^a rule in practice confines itself to hypothetical cases which ma; never occur, and, instead of recognizing and applying the genera principle, limits the rule to some three classes only of indirect claims being those which are put forward by the United States in their Case a Geneva." The Cabinet is now in session. SCHENCK No. 74. General SchencTc to Mr. Fish. No. 243.] Legation of the United States, London, May 30, 1872. (Eeceived June 11.) , Sir : Inclosed with this I send copies of all written correspondenc which has passed between Lord Granville and me since my No. 23i These notes taken in connection with the several telegrams which hav passed between you and me, of which copies are also forwarded to yo with another dispatch to-day, will bring up the history of what has take j?lace here for the last five days in relation to the proposal for a suj plementary Treaty. Your telegram of the 28th, declining, on the pai of the United States, to agree to the proposed altering of the supph mentary Treaty, was received in the night and communicated to Lor Granville very early yesterday morning. I would give you, with thes documents, some narrative and comments, and it was my intention t 636 TREATY OF WASHINGTON. do SO, but your long telegram in answer to the observations of Lord Granville, contained in his note which I telegraphed to you in full at midnight of the 28th, has this moment arrived and requires to be de- ciphered and to have my immediate attention, so that it ■will not be possible to give any other communication by the mail which is made up. for Queenstown to-day. I have the honor to be, sir, your obedient servant, EOBBET C. SCHBjSTCK. [Inclosure 1 in Ko. 74.] JSarl Granville to General Scheiick. Foreign Office, May 27, 1872. Sir: I instructed Sir E. Thornton to communicate to Mr. Fish the accompanying form of preamble to which Her Majesty's Government were prepared to agree in case a. convention shouJd be concluded embodying the draught Article. I have learned from Sir E. Thornton that Mr. Fish would prefer the omission of the words " in order that the same may be communicated to the Tribunal of Arbitration, appointed under the first article of the Treaty signed at Washington on the 8th of May, 1871, for the guid- ance of the proceedings of that Tribunal," and 1 have this day informed Sir E. Thorn- ton that he may tell Mr. Fish that Her Majesty's Govertfment will not insist on the words which he desires to omit in the preamble, if he will give Sir E. Thornton aa assurance in writing that the Government of the United States will agree to the form of note which I proposed, and of which I sent you a copy on the 20th instant, com-- municating the Convention on the part of the two Governments to the Tribunal of Arbitration at Geneva. I have to add that Sir E. Thornton has a general full power enabling him to sign a Convention, and instructions to do so if the proposals contained in this, and in my other letters of this day's date, are agreed to. I have the honor to be, with the highest consideration, sir, -your most obedient, humble servant, GRANVILLE. [Inclosure 2 in No. 74.] Proposed preamble to supplemental Treaty. Her Majesty the Queeen of the United Kingdom of Great Britain and Ireland, and' the United States of America, having resolved to conclude a Convention in the terms of" the Articles hereinafter set forth, in order that the same may be communicated to the Tribunal of Arbitration appointed under the first Article of the Treaty signed at' Washingtoii, on the 8th of May, 1871, for the guidance of the proceedings of thati- Tribunal, have named as their Plenipotentiaries, that is to say [Inclosure 3 in STo. 74.] Earl GrMville to General Schencle. FoEBiGN Office, London, May 27, 1872. Sir: I have lost no time in laying before the Cabinet the telegraphic dispatch fromi Mr. Fish, which you communicated to me this afternoon, informing you of the result of the deliberations of the Senate on the draught Article submitted for their advice- by the President of the United States. It appeared from this dispatch that the Senate- had agreed to advise and consent to the adoption of the proposed article, with the substitution for the third and fourth paragraphs, of two paragraphs, as follows : "And whereas the Government of the United States has contended that the said' claims were included in the Treaty; and whereas both Governments adopt for the fu- ture the principle that claims for remote or indirect losses should not be admitted as- CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 537 the result of the failure to observe neutral obligations, so far as to declare that it will hereafter guide the conduct of both Goveraments iu their relations with each other, now, therefore," &c. In communicating this dispatch to me, you inquired whether any possible interpre- tation could be given to the proposed Article in the form in which the Senate have' modifi.ed it, taking all its parts together, which would prevent taking before the Arbi- trators, to be considered by them in making their award, that part of the claim called " direct claims " in the Case, which relates to the cost of pursuit and capture of cruisers.. I have now the honor to state that I must, on behalf of Her Majesty's Government,, decline to answer the question which you have put to me as to the effect of the article^ as altered by the Senate, or to state what possible construction it may bear. Her Majesty's Government are of opinion that the definition as therein expressed,, of the principle which both Governments are prepared to adopt for the future, is so vague that it is impossible to state to what it is or is not applicable, and they believ& that it would only lead to future misunderstandings. That Her Majesty's Government, prefer the Article as they had draughted it, but have no objection to accept the Article in the form proposed by the Senate, witli the substitution of the words " of a like nature " for the words " for remote and indirect losses," and the substitution of the words " such want of due diligence on the part of a neutral " for the words " the fail- ure to observe neutral obligations." The article would then run thus : "And whereas both Governments adopt for the future the principle that claims of a like nature should not be admitted as the result of such a want of due diligence on the part of a neutral, so far as to declare that it will hereafter guide the conduct of both Govern- ments in their relations with each other." I have the honor to be, with the highest consideration, sir, your most obedient, hum- ble servant, GRANVILLE. [Inclosare 4 in No. 74.] General Schenck to Earl Granville. Legation of the United States, London, May 28, 1872. My Loud : I received late last evening your note of yesterday's date, informing me> in relation to the form of preamble which you had instructed Sir Edward Thornton to communicate to ilr. Fish, as that to which Her Majesty's Government were prepared to agree in case a convention should be concluded embodying the draught Article, that you had since learned from Sir Edward that Mr. Pish would prefer the omission of the words " iu order that the same may be communicated to the Tribunal of Arbitration appointed under the first Article of the Treaty signed at Washington, on the 8th of May, 1871, for tie guidance of the proceedings of that Tribunal," and that you had informed Sir Edward Thornton that he might tell Mr. Fish that Her Majesty's Govern- ment will not insist on the words which he desires to omit in the preamble, if he will give Sir Edward Thornton assurance, in writing, that the Government of the United States will agree to the form of note which you proposed, and of which you sent me a copy on the 20th instant, communicating the Convention on the part of the two Gov- ernments to the Tribunal of Arbitration at Geneva. • In the same note you add that Sir Edward Thornton has a general full power, en- a;bling him to sign a convention, and instructions to do so if the proposals contained in that note and in your other letter of the same date are agreed to. • Immediately after the receipt of your note last night I communicated to Mr. Fish,. by telegraph, information of that instruction you had given to Sir Edward Thornton in regard to omitting the words in question from the preamble. I had previously, and early in the day yesterday, telegraphed to Mr. Fish the information you had already given me xerbally, that Sir Edward Thornton had a full power to sign a convention. But I remark now, that the instructions to Her Majesty's Minister at Washington appear by your note to have been given to be exercised on a condition. I beg to know from your Lordship if I am to understand that Sir Edward Thornton's authority to sign is limited by his instructions, and only to be used in the case that the proposals contained in your notes addressed to me yesterday are agreed to by the United States. I have the honor to be, with the highest consideration, my Lord, your Lordship's- most obedient servant, ROBT. C. SCHENCK. / 538 TRi;.ATY OF "WASHINGTON. [Inclosure 5 in No. 74.] General SchencTc to Earl Granville. Legation of the United States, London, May 28, 1872. My Lord : I received last night, between 9 and 10 o'clock, your note informing me that you had lost no time in laying before the Cabinet the telegraphic dispatch from Mr. Fish, which I communicated to you yesterday, informing you of the result of the deliberations of the Senate on the draught Article, submitted for their advice by the 'President of the United States. You remark that in communicating that dispatch to you I inquired whether any possible interpretation could be given to the proposed Article in the form in which the 'Senate have modified it, taking all its parts together, which would prevent taking be- fore the Arbitrators, to be considered by them in making their award, that part of the ■claim called " direct claims" in the Case, which relates to the cost of pursuit and cap- ture of cruisers ; and you state that you must, on behalf of Her Majesty's Govern- ment, decline to answer that question as to the effect of the Article as altered by the Senate, or to state -what possible construction it may bear. I will here only interpose, as to that question, to say that the point was brought to your Lordship's attention, in connection with the delivery to you of the Article as the Senate had proposed to amend it, because I desired by the inquiry to remind you that, whatever might become the form in which the article might ultimately be adopted, it could not be intended to open any question in relation to claims to the introduction of vrhioh Her Majesty's Government had never objected, "notwithstanding the doubt how far those claims, though mentioned during the conferences as direct claims, came within the proper scope of arbitration." I quote the language of your Lordship's note to me of the 20th of March last. The Government of the United States is of opinion that the language of the Senate can- not be interpreted to exclude those claims ; but I am now instructed to say that the Article, in "whatever form adopted, as to the proceeding before the Arbitrators at Geneva, must be understood to prevent only the presentation of the claims enumerated in the second contention of Her Majesty's Government. Your Lordship in this note proceeds to inform me that Her Majesty's Government are of opinion that the definition, as expressed in the Senate amendment, of the prin- ciple which both Governments are prepared to adopt for the future is so vague that it is impossible to state to what it is or is not applicable, and they believe that it would only lead to future misuuderstandiiigs. That Her Majesty's Government prefer the Article as they had draughted it, but have no objection to accept the Article in the form proposed by the Senate, with the substitution of the words " of a like nature" for the words " for lemate or indirect losses," and the substitution of the words " such want of due diligence on the part of a neutral" for the words "the failure to observe neutral obligations." The Article would then run thus : "And whereas both Govern- ments adopt for the future the principle that claims of a like nature should not be ad- mitted as the result of such a want of due diligence on the part of a neutral, so far as to declare that it will hereafter guide the conduct of both Governments in their rela- tions with each other." I hastened last night to telegraph the full substance of all this communication to Mr. Fish. I am as yet without any answer to that telegram, and without instruction or infor- mation as to the disposition of my Government to entertain or consider the changes which Her Majesty's Government propose to the Senate's amendment. But I am not prepared to believe that the modification can be assented to by the President. Such change of language would alter the whole character of the agreement. I cannot permit to pass unquestioned the expression of the opinion of Her Majesty's Oovernraent as to the vagueness of the definition of the prinoiple which both Govern- ments are prepared to adopt, and of the impossibility of stating to what it is or is not applicable, although in replying I may but in effect repeat what I said to you iij^ an interview of the 10th of this month, and of which I gave you a memorandum in ■writing. What the United States has all along proposed as the ground on Vhich the two Gov- ernments might safely, honorably, and consistently meet, is the establishment of a rule, to be the law or contract in the future between them, declaring that neither of them shall demand compensation from the other for remote or indirect losses arising out of, or being the result of, failare in the observance of neutral obligations. This rule should be the expression of a principle to be applied to cases as they may arise; and ought not to consist in a reference to cases or circumstances which may or may not ever oc- cur, and be limited to those instances, without application to other cases in which the damage done or alleged may be equally or farther removed from the act of which it is assumed to be the result. They do not see that there is vagueness in such a rule or diflculty in its application COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 639 ito tacts, beyond what may be said of any other principle embodied in statute or treaty law. Consider, my Lord, what is the history of that difference between our two Govern- ments which has led to the negotiation for a supplemental Treaty Article. The United States have put forward in their Case at Geneva, for the consideration of 'the Arbitrators, certain claims, to which the British Government objects. Great Britain founds her objection to those claims not merely on her interpretation of the Treaty, according to which she insists they are inadmissible, but also on the ground that such claims are, from their very character and nature, such as ought not to be presented ; "that such claims," to use the emphatic language of your Lordship, " are wholly be- yond the reasonable scope of any treaty of arbitration whatever, and that to submit them for decision by the Tribunal would be a measure fraught with pernicious conse- quences to the interests of all nations and to the future peace of the Wx)rld." That Her Majesty's Government " cannot see that it would be advantageous to either country to render the obligations of neutrality so onerous as they would become if claims of this nature were to be treated as proper subjects of international arbitration." What is that nature of the claims in question, which makes them so objectionable to Her Majesty's Government ? They are indirect, remote, consequential. WiU you, then, unite with us, asks the Government of the United States, in an agree- ment founded upon that principle for which you contend, and as broad as the principle itself, "' that claims for remote or indirect losses should not be admitted as the result of failure to observe neutral obligations;" and will you unite with us in a declara- tion that this principle " will hereafter guide the conduct of both Governments in their relations to each other ?" Can Great Britain continue to reply that while she desires to make such a rule, a rule consistent with the position she has taken against the whole class of remote or indirect claims, against a neutral, she must persist in coufining it in terms to only such peculiar descriptions of that class of indirect claims as happen now to be the subject of contention between her and the United States, andwhich particu- lar kind of claims may never have existence again? Will it not seem, if this be the limit of the agreement, that the object is not to afiSrm and vindicate an important principle, but only to find an expedient for excluding from consideration, or extinguish- ing altogether, certain matters which are unfortunately now a present cause of contro- versy ? I have the honor to be, with the highest consideration, my Lord, your Lordship's most obedient servant, EOBT. C. SCHENCK. [Inclosure 6 in Xo. 74.] Earl Granville to General Schenck. Foreign Office, London, May 28, 1872. Sir : In reply to the inquiry contained in your letter of this day, respecting the lim- itation placed upon the immediate exercise by Sir Edward Thornton of the general fuU power to sign treaties with which he is provided, I have the honor to acquaint yon that while we are far from asserting that the form of Article proposed by Her Majesty's Government is not capable of further improvement upon sufficient cause being shown, Sir Edward Thornton has no instructions to use his full powers, except in accordance with the arrangement we have proposed. I have the honor to be, sir, your most obedieut, humble servant, GRANVILLE. [Inclosare 7 in 'No. 74,] JEarl Granville to General SchencJc. Foreign Office, London May 28, 1872. Sir: I have to acknowledge the receipt of theletter which youhavedonemethe honor to address to me, in reply to my letter of yesterday, in which I informed you that I had laid before the Cabinet the telegraphic dispatch from Mr. Fish, stating the result of -the deliberations of the Senate on the draught Article submitted by the President for their advice. t-.- -l i. As you acquainted me to-day that you had not received any reply from Mr. Fish to your communication of my letter, I think it better to defer till I hear from you the view taken of my letter by Mr. Fish, before replying to the observations contained in your letter. I have the honor to be, with the highest consideration, sir, your most obedient, iumble servant, GRANVILLE. 640 TREATY OF WASHINGTON. [Inclosure 8 in 'So. 74.] Earl Graiwille to General Schenole. Foreign Oi'pice, London, May 28, 1872. Sir: I think it desirable at once to address to you the following observations, in ad- dition to what is stated in my letter of yesterday : Her Majesty's Government proposed an Article on the suggestion of the American Government. That Article has been amended by the Senate. Her Majesty's Government are not able to find for it, as amended, any means or standard of interpretation. The words appear to include the willful misconduct of a neutral as well as a failure from want of due diligence. They cannot suppose this to be the meaning of the American Government. Her Majesty's Government hold all the claims made by the United States for losses^ which were the direct results of the acts of vessels mentioned in the Treaty, to be claims for " indirect losses as the result of the failure to observe neutral obligations."' Her Majesty's Government hold many of the claims for the losses above mentioned to be claims for losses which are " remote " as well as " indirect," while " resulting from a failure to observe neutral obligations." Her Majesty's Government are unable to signify an assent to a form of Article of which they cannot for themselves discover the scope, and with respect ta which, owing probably to the diflSculty of telegraphic communication, they have not been apprised of the meaning which the American Government attaches to it, or of the reasons which have led to its being proposed. If the Government of the United States think it desirable to give the Information which Her Majesty's Government wish to receive on these points, and also think that, for that purpose some adjournment of the time of meeting of the Arbitrators of Ge- neva should take place. Her Majesty's Government would be ready to agree to any suitable proposal for that purpose, which they presume could only be done by a short treaty between the two Governments. I have the honor to be, with the highest consideration, sir, your most obedient,, humble servant. GRANVILLE. [Inclosure 9 in K"o. 74.] General ScTienck to Earl Granville. Legation op the United States, London, May 28, 1872. My Lord : I received at 8 o'clock this evening your note of this date, in which youi say you think it desirable to address to me, as you therein proceed to do, some obser- .vations in addition to what is stated in your letter of yesterday. I shall hasten to-night to communicate the whole of this note by telegraph to my Government. I have the honor to be, with the highest consideration, my Lord, your Lordship's, most obedient servant, ROBT. C. SCHENCK. No. 75. General Schenclc to Mr. Fish. [Telegram.] London, Hay 31, 1872. (Received 7.35 a. m.) At 2.45 this morning Lord Granville sends me the following, dated 30th: lEarl Granville to General Schenclc,^ Sir: I am unable to admit the accuracy of the description which Mr. Fish has given in the telegraphic message which you have commnnioated to me to-day of the course which Her Majesty's Government has pursued, or of the objects which they have had in view. I can only attribute such a misunderstanding to the imperfection una- CORRESPONDENCE EESPECTING GENEVA AEBITKATION. 541 ■voidably attendant on negotiations by telegraph, which makes it difficult for either party clearly to tiuderstaud the views and arguments of the other. This circumstance ■seems to strengthen the reason for the suggestion which I made in favor of an adjourn- ment of the meeting of the Tribunal of Arbitration at Geneva. Her Majesty's Govern- ment have stated their objections to the words proposed by the Senate. I have already informed you that they did not pretend that the words suggested by themselves were incapable of improvement, and they have resolved to make a suggestion which they trust will meet the views of both Governments. I proceed therefore to put you in pos- session of a draught Article, of which I inclose a copy, and which, if adopted by the Government of the United States, Her Majesty's Government would be prepared to accept : " Whereas the Government of Her Britannic Majesty has contended in the recent correspondenoe with the Government of the United States as follows, namely, that .such indirect claims as those for the national losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration at Geneva, to have been sustained by the loss in the transfer of the American commer- cial marine to the British flag, the enhanced payments of insurance, the prolongation of the war, and the addition of a large sum to the cost of war and the suppression of the rebellion — firstly, were not included in fact in the Treaty of Washiugton; and farther and secondly, should not be admitted in principle as growing out of the acts committed by particular vessels alleged to have been enabled to commit depredations upon the shipping of a belligerent by reason of such a want of due diligence in the performance of neutral obligations as that which is imputed by the United States to •Great Britain ; and whereas the Government of the United States has contended that the said claims were included in the Treaty ; and whereas both Governments adopt for the future the principle that claims against neutrals for remote and indirect losses should not be admitted as resulting from the act of belligerents which such belliger- ents may have been enabled to commit by reason of a want of due diligence on the part of a neutral in the performance of neutral obligations so far as to declare that this principle will hereafter guide the conduct of both Governments in their relations with each other : now, therefore, in consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States before the Tribunal of Arbitration .at Geneva, n -di -ect of the several classes of indirect losses hereinbefore enumerated." No. 76. Mr. Fish to General SchencJc. [Telegram. — Extract.] Washington, 3Iay 31, 1872. As stated iu a previous dispatch wliieli you communicated to Her Majesty's Government, unless a treaty be signed and ratified by this Government this day, so as to be transmitted to London by to-morrow's steamer, for ratification by Her Majesty, it will not be possible that it become operative in time to be laid before the Arbitrators at Geneva on 15th Jane, on which day the existing Treaty requires that the arguments be presented. " Tour telegram reached me this morning within thirteen hours of the ■departure of the last conveyance by which a copy of a treaty can leave here to take the steamer of to-morrow. It would be impossible for the Senate, within that time, to consider the Important change proposed of the form and terms in which, after long deliberation, they have agreed to advise the President to negotiate the proposed Article. Her Majesty's ministry has already been apprised of this. To propose a change of language, involving a change of object and of •effect, at this late period, is therefore practically to defeat any agreement. Lord Granville admits that the language of the Article first proposed by Her Majesty's Government might be improved. The President 542 TEEATY OF WASHINGTON. thinks that the same may he said of that now proposed by Lord Gran- ville ; it appears to him to leave a large class of very probable cases^ unprovided for, and he holds that the result of bad faith, or of willful misconduct toward either of these two Governments, will never be the subject of pecuniary compensation. I have suggested to Sir Edward Thornton that we sign the Article as recommended by the Senate, and thus put it in operation, and allow the arbitration to proceed. It is not believed that there is any such difference of object between the two Governments in the definition and limitation which each desires to place upon the liability of a neutral, as to prevent an agreement on the language in which to express it, if time be allowed for an exchange of views by some other means than the telegraph. There is no probability of a practical question on 'the extent of that liability arising immediately. This Government is willing'at once to enter upon negotiations for the purpose of ascertaining whether language can be employed which shall more clearly express the views which it is believed are entertained by both parties. FISH. [From British Blue Book "North America," No. 9, (1872,) p. 33.] No. 77. Uar-l Granville to Sir JE. Thornton, Foreign Office, May 31, 1872. Sir : I send you the draught of a Convention for adjourning the period for the presentation of the arguments under the Vth Article of the Treaty of Washington, to be used, however, by you only in case of the new Treaty Article proposed by us not being agreed to, and an adjourn- ment being agreed to, in which case you are authorized to sign it as it. is now sent to you. I am, &c.. GRANVILLE. [luclosnre in No. 77.J Sketch of a Convention. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and the United States of America, deeming it expedient to extend the time assigned in the Vth Article of the Treaty of Washington, of the 8th of May, 1871, for the delivery in. duplicate to each of the Arhitrators appointed under the 1st Article of the said Treaty, and to the Agents of the respective parties, of the written or printed argnment, showing the points and referring to the evidence upon which each of the said parties respect- ively relies, in regard to the matters submitted by them for arbitration under the afore- said lat Article, they have agreed to conclude a Convention for that purpose, and have accordingly named as their Plenipotentiaries : That is to say, &c. COKEESPONDENCE RESPECTING GENEVA ARBITEATION. 543^ Article I. The High Contracting Parties agree that the period appointed under the Vth Article of the Treaty of Washington, of May 8, 1871, for the delivery in duplicate to each of the Arbitrators, and to the Agents of the respective High Contracting Parties, of the written or printed argument, showing the points and referring to the evidence upon which each of the said parties respectively relies, in regard to the matters submitted by them for arbitration under the 1st Article of the aforesaid Treaty, shall not be in- sisted on, but that it shall be open to the High Contracting Parties, within the period of three months from the date of the exchange of the ratifications of the present Con- vention, jointly to notify, through their respective Agents to the Arbitrators, the day on which those Agents will be prepared to deliver at Geneva the said arguments to the Arbitrators. Article II. A copy of this Convention shall be forthwith communioated^by the Agents of the High Contractipg Parties to the several Arbitrators. Article III. The present Convention shall be ratified, and the ratifications exchanged at London,, within weeks from the date thereof. [From British Blue Book "North America," No. 9, (1872,) p. 46.] No. 78. Sir JE. Thornton to Earl Granville. [Extract.] WASHINGTON, May 31, 1872. (Received June 11.) I received a visit from Mr. Fisli early in the morning of the 29th instant, when he read to me a telegram he had received from General Schenck, a copy of which 'was forwarded in your telegram of the 28th instant. Mr. Pish said that he could not entirely understand the ground of your Lordship's objections to the supplementary Article as recommended by the Senate. He went on to say, that as the session was now so near its. close, and as there was an immense amount of business still to be got through, he believed that it would be quite impossible to obtain an. Executive Session for the purpose of taking into consideration even so short a Treaty as would be necessary to agree upon an adjournment of the meeting of the Tribunal of Arbitration, more particularly as in transmitting such a Treaty to the Senate for its sanction, it would be necessary to state that the supplementary Article recently recom- mended by that body bad been rejected by Her Majesty's Government, and ,to accompany that statement by the confidential telegrams which had passed between General Schenck and himself upon the subject. Mr. Pish added, that even if such a Treaty of adjournment were signed and ratified, there would still be the same difficulty about making a convention as to the course which was to be pursued with regard to indirect claims. It could not be done immediately, and it would be a matter of great difficulty to convoke the Senate in Extraordinary Session during the summer for the purpose of ratifying such a conven- tion. It could not, therefore, be submitted to the Senate till it met in, December next, and it could not be foreseen when it might be taken 544 TREATY OF WASHINGTON. into consideration ; and it would, therefore, be very difiScalt to decide until what date the meeting of the Tribunal should be postponed. It is at present difficult to prevent members of Congress from avail- ing themselves of any opportunity to interrupt the most necessary and pressing business, and to make violent party speeches in both Houses. No. 79. General SchencTc to Mr. Fish. ISTo. 246.] Legation of the United States, London, June 1, 1872. (Received June 13.) SiE : I transmit herewith a copy of Lord Granville's note to me of the 30th May, communicating, on the part of Her Majesty's Govern- ment, another amended draught Article, received at 2.45 yesterday morn- ing, and of which, both note and amended Article, I sent you the full text by telegraph early the same morning. I transmit also a copy of my note to Lord Granville^ acknowledging the receipt of the above-mentioned communication, and informing him that I would immediately telegraph his note and the new draught to you ; and a copy of my note to him sent at midnight last night, conveying to him a copy of your telegram of yesterday received at that hour. It is now afternoon, and I have as yet heard nothing from his Lord- ship in answer, or in relation, to that telegram. I have the honor to be, sir, your obedient servant, EOBT. C. SCHENGK. [Inclosuie 1 in Xo. 79.] General ScIiencTc to Earl Granville. 58 Great Cumberland Place, Hyde Park, W., Friday, 2.45 a. m., May 31, 1812. My Lord: I have just been called from my bed to receive your note, dated the 30th, putting me in possession of another form of a draught Article which Her Majesty's Government would be prepared to accept if adopted by the Governmeut of the United States. I will hasten to communicate your note and the draught to Mr. Fish by telegraph, , so that they may reach Washington at the earliest possible hour for consideration there. I am, my Lord, with the highest consideration, vour Lordship's most obedient servant, EOBT. C. SCHENCK. [Inclo6xir6 2 in No. 7S.] Geiiei'al Sclier.dic to Earl Grar.ville. 58 Griat Cumberland Place, May 31, 1872, midnight. My Lord : I have just received from Mr. Fish a telegraphic dispatch, of which I hasten to communicat i to you the inclosed copy. I have the honor to be, my Lord, with the highest consideration, your Lordship's most obedient servant, EOBT. C. SCHENCK. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 545 No. 80. Mr, Fish to General Schencll [Telegram.] Washington, Jime 1, 1872. The fifth Article of the Treaty requires the written arguments to be presented by the 15th June. The adjournment of the Tribunal without amending that Article would, as we are advised, practically amount to a discontinuance, and that Article can be amended only by a new treaty. The opinion attributed to me regarding the Senate Article is very in- correctly represented. FISH. No. 81. General Sclienck to Mr. Fisli. [Telegram.] London, June 1, 1873. (Received 3.50 p. m.) Tour telegram of yesterday was received at midnight, and imme- diately communicated to Lord Granville, who has just sent me an answer as follows ; \Earl Granville to General Sclienck,'] Sir : In reply to the communication whioh I received from you this morning, I beg to inform you that Her Majesty's Government hold that by the Article adopted by the Senate, cases of bad faith and willful misconduct are brought within the scope of the proposed agreement, which deals with pecuniary compensation. It appears to be the view of the Government of the United States that such cases are not a fit subject of pecuniary compensation, and I am informed by Sir Edward Thornton that Mr. Fish is of opinion that the Article adopted by the Senate is capable of improvement. The President thinks that the Article last proposed by Her Majesty's Government is also capable of improvement. The American Government state that " it is not believed that there is any such difference of object between the two Governments in the deiini- tiou and limitation which each desires to place upon the liability of a neiitral as to prevent an agreement on the language in which to express it if time be allowed for the exchange of views by some other means than the teloOTaph." The British Govern- ment must decline to sign a treaty which is not in conformity with their views, and which does not express the principles which the American Government believes to bo entertained by both parties to the negotiation, and which, immediately after' being signed, would become the subject of negotiation with a view to its alteration. In this position they repeat their readiness to extend the time allowed for the Arbitrators to meet at Geneva, and they have, as you are aware, provided Sir Edward Thornton with full powers to sign a treaty for this purpose, or they are willing to concur in a joi nt application to the Tribunal of Arbitration at once to adjourn the proceedings of t he Arbitration, which they are advised it is within the competence of the Arbitrators to do upon such an application without a fresh treaty. SCHENOK. 35 A— II 546 TREATY OF WASHINGTON. No. 82. 'Mr. Fish to General SchencJc. [Telegram.] Washington, June 2, 1872. Although by a literal construction of the Senate Article, cases of bad faith or willful misconduct may be held to be within its scope, it is in- conceivable that such cases can ever be the subject of diplomatic corre- spondence with a view to pocuniarj'- compensation between two Powers such as those now concerned. JISH. No. 83. General SchencJc to Mr. Fish. L Telegram.] London, June 2, 1872. (Received 1.20 o'clock.) Your telegram of yesterday just received. I will communicate it to Lord Granville to-morrow. Must I say it is final ? They hold here that after the Arbitrators have received the arguments from the Agents on the 15th they may adjourn for a time, and would doubtless do so oa joint request of the two Governments; that the power to adjourn is in- cident to the character of the Tribunal, reference being had only to the seventh Article of the Treaty, which requires a decision to be made, if possible, in three months. In this view I certainly concur, but have not expressed my opinion to any one. If the ministry were to enter into any such arrangement, putting in their argument and trusting to the chance of negotiating a supplementary Article afterwards, they must expect denunciation in Parliament ; but that would be their concern, not ours. I heard from Davis last week that our argument would be ready by the 15th, and Lord Granville told me theirs would be. SCHENCK. No. 84. Mr. Fish to General Schenoh. [Telegram.] Washington, June 2, 1872. Confidential. We concur in the opinion tliat the Arbitrators have the power to adjourn either on their own motion or on the motion of either party. If the arguments be put in on both sides on 15th, and Great Britain move for an adjournmeut, this Government will concur. FISH. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 547 No. 85. General Seliench to Mr. Fish. [Telegram.] London, June 3, 1872. (Received 11.25 p. lu.) I found this moraing I had partly misunderstood Lord Granville. Her Majesty's Government are of opinion tliat the Arbitrators must meet on the 15th, but that it is not necessary for the Agents to present the arguments at that time. Such delivery of arguments they think may, by joint agreement, be postponed. This conclusion was under advice of Sir Eoundell Palmer. I asked Lord Granville if he would consider this point again when in Cabinet to day, and tell me how they thought the parties could proceed under the fifth Article without such delivery of arguments. It seemed to me that the Arbitrators need not necessarily assemble then any more than they did to receive the Counter Cases. Perhaps, however, the parties might, by mutual agreement, waive the presentation of arguments at that date, being a matter which related not to the Arbitrators, but to a duty to be performed by their own Agents. He has just sent me the following communication : [^Earl Gh'anville to General SohencTc.'] Sir : In reply to the question which you put to me this morning, I have to state tff you that Her Majesty's Government consider that the Arbitrators must no doubt meet on the 1.5th of June, but the fifth Article of the Treaty, though it contemplates the delivery of written arguments on that day, does not make the further prosecution of the arbitration impossible, if on that day neither party presents any written argument . The Arbitrators have full power to adjourn, and they have also full power to call, after the 15th, for any further statements or arguments, written or oral, from time to time as they may think fit. If, therefore, both parties agree not to present any argument till a later day than the 15th, requesting the Arbitrators to adjourn, and if the Arbi- trators should, on any day to which they may have adjourned, accept the argument which both parties may then wish to tender to them, this will be quite within their power. SCHBNCK. No. 86. Mr. Fish to General SchencTc. No. 216.] Depaetmbnt of State, Washington, June 3, 1872. Sir : Your dispatch No. 233 of the 18th ultimo, inclosing copy of supplement to the London Gazette of the day previous, has been received. This copy of the Gazette brings to the Department the first notice it has had of Earl Granville's note of the 13th ultimo, which probably appeared in print, submitted to the British public, long before it reached Sir Edward Thornton, to whom it purports to be addressed. The avowed purpose of Earl Granville's note is to notify Sir Edward Thornton that Her Majesty's Government have refrained from continu- ing " an argumentative discussion with the Government of the United States, upon the scope and intention of the Articles in the Treaty of "Washington, relating to the Arbitration on the 'Alabama claims ;'" and to put him in possession of the views of that Government, with reference SCHENCK. 548 TREATY OF WASHINGTON. to some passages which occur iu my note to you of the 16th of April, Of course it will not be assumed that the object of its publication iu Great Britain, in advance of its possible receipt by the gentleman for whose instruction it was written, had any connection with the influenc- ing of public opinion in Europe, or near the expected scene of the •Geneva Tribunal. It never was the desire of this Government to open, much less to prolong, discussion with her Majesty's Government upon the scope and intention of the Articles in the Treaty of Washington relating to the Arbi- tration on the Alabama claims. The Government of the United States hoped, as it had reason to believe, that before the august Tribunal, appoint- ed in accordance with the terms of the Treaty of Washington to " examine and decide" upon the matters in dispute between the United States and Great Britain, and designated as the "Alabama claims," the Treaty would be its own interpreter. Itesting npon this most reasonable conviction, it has been the earnest wish of the President (a wish often expressed in the correspondence of this Department on the subject) to remit all discussion as to the scope and meaning of the Treaty to that Tribunal. Had this feeling been reciprocated by Her Majesty's Government, the discussion which has occurred between the two, Governments upon the true meaning of the Treaty might have been in a great measure avoided, Upon the present point of contention between this Government and that of Great Britain, namely, whether the claims for " national losses " popu- larly denominated "indirect damages," are by the terms of the Treaty fairly within the province for the consideration and decision of the Geneva Tribunal, the United States it is believed will lose nothing by the fullest discussion of the question. In my note to you of the 16th of April, I had occasion to say, "It is dilficult to reconcile the elaborate line of argument put forward by Earl Granville to show a waiver of claims for indirect losses, with the idea that at the outset of the negotiations Her Majesty's Government did not consider the matter of public or national injuries as the basis of an out standing claim against Great Britain, on the part of the United States.'', His Lordship's instruction of the 13th ultimo, now before me, does not serve to lessen, much less to remove, the difficulty thus suggested. In this instruction Earl Granville, with great skill and ingenuity, recapitu- lates the previous arguments on the question, and arranges, with in- finite care, the facts upon which he desires that the propositions ad- vanced by Her Majesty's Government should rest. Passing over a certain tone of criticism, which may with propriety be ascribed to the pressure of public business upon his Lordship at the present moment, I proceed to notice some statements in his Lordship's note, from which he draws inferences iu my opinion wholly unwarranted by the premises. I do this that you may be put in possession, not only of all new facts on the subject, but also of the views of this Government, in order that you may be able to make such use of them in your future intercourse on this subject with Her Majesty's Government as the occasion may demand. Speaking of the allusion in my instruction of the 16th of April to Earl Eussell's dispatch of March 27, 1863, to Lord Lyons, Earl Gran- ville says: "Mr. Pish omits the words 'of which the Confederate loan is an additional proof;' which, taken with thecontext, shows that Mr. Adams was then speaking not of the case of the 'Alabama,' but of the assist- ance in money and materials, which he considered was improperly ren- dered to the Confederate States by blockade-running and the cotton loan." It is true that those words were omitted; there was no reason why they should have been quoted ; they refer to some other and additional proof COERESPONDENCE RESPECTING GENEVA ARBITRATION. 549 of the couspiracy which Mr. Adams was pointing out, as tending to bring on a war with a view to aid the Confederate cause. My object was not to fortify what Mr. Adams had said, but to show that" he had notified to Great Britain that her conduct was aiding the Confederate cause; with or without the omitted words the extract establishes the notice. The cumulative evidence which they afford of the conspiracy that Mr. Adams notified to Lord Russell is unimportant to the notice given. The suggestiou of the omission seems to be an ingenious avoid- ance of a material issue in the case by raising another of no possible significauce. But in this conuection it is difficult to imagine by what process of divination Lord Granville assiimes that Mr. xidams was speaking with reference to blockade-running, which is not even alluded to in Lord Eussell's uote, and seems to be an interpolation wholly unsustained by the narrative of Lord Kussell, whose general amiability of character and friendship for the United States have never yet subjected him to the suspicion of withholding anything that might be used to their dis- advantage or discredit. A perusal of Lord Eussell's note (which is appended hereto, copied from the British Blue Book, North America, No. 1, 1864, p. 2) shows the main object of the interview which Mr. Adams had sought with Lord Russell to have been the presentation of a dispatch of Mr. Seward, complaining of the fitting or^; and the depreda- tions of the "Alabama" and the " Oreto," and other cruisers, to which the conversation was mainly confined. These things Mr. Adams thought made manifest a conspiracy, of which the " Confederate loan was an additional proof," and he thus brought the existence of a conspiracy with a view to prolonging the war to the notice of the British Govern- ment. I appeal to Lord Russell's note to determine whether, as I supposed, and as Lord Granville denies, Mr. Adams referred to the "Alabama" as among the causes tending to produce the exasperation which might lead to a war " with the view to aid the Confederate cause," and whether, as Lord Granville asserts, and I doubt, Mr. Adams was speaking of " blockade-running." If (as I think that Lord Russell's uote establishes) the "Alabama" and other cruisers were the subject of the conversation, there was no occa- sion on my part to adduce the Confederate loan as "additional proof." The fact that it is mentioned as " additional proof" shows that it was not the main proof of which Mr. Adams had been speaking. Lord Gran- ville has unhappily misconceived the subject which formed the leading topic of the interview between Mr. Adams and Lord Russell. The depredations of the cruisers afloat, the continued buildiug of ships for the Confederates in British ports, the manning those ships with British sailoi-s, and the unconcealed desire on the part of the conspira- tors for the success of the Confederates, and for a monopoly of the trade of the Southern States : this, in the estimation of Mr. Adams, was the evidence of the existence of the conspiracy of which the Confederate loan was incidentally referred to as " additional proof." Earl Granville mentions that the dispatch of the 14th of February, 1866, and that of 2d May, 1807, both from Mr. Seward to Mr. Adams, were neither of them communicated to Her Majesty's Government. If his Lordship means that these notes were not officially communicated to his Government at the time of their date, he is unquestionably right, but then he controverts what was not alleged. I had said " the official correspondence of this Government which was published and is within the knowledge of Her Majesty's Government ;" this Lord Granville does 550 TREATY OF WASHINGTON. not deny, and this I re-assert. A volume containing the notes referred to was placed in the possession of the British Joint Commissioners, and was again formally delivered to the Agent of Her Ma,jesty, at Geneva, in December last. Lord Granville himself more than once quotes from it, thus establishing what I have asserted, that the contents of that volume were within the knowledge of Her Majesty's Government. Lord Granville refers to a dispatch to Mr. Seward, dated 17th Feb- ruary, 1869, in which Mr. Eeverdy Johnson reviews the objections made in the United States to the (Jonvention negotiated by him. His Lordship mates a long extract from this dispatch, referring to " page 767 " as that on which it appears. The two dispatches which he had intimated had not been communicated to Her Majesty's Government, appear in the same volume from which he thus quotes, the one at page 628, the other at page 673. At the conclusion of this extract his Lordship proceeds : " If Mr. Johnson was mistaken in the view thus decidedly expressed, it might be expected that some notice would have been taken of so important an error." When it is remembered that the Convention of which Mr. Johnson was then speaking, and in the negotiation of which he had acted so prominent a part,was rejected by the Senate of the United States, a branch of the treaty-making power of this Government, it can scai'cely be said, even with plausibility, that Mr. Johnson's expression of his own views, in the dispatch from which Earl Granville quotes so liberally, was allowed to pass unnoticed by this Government. The vote of the Senate is un- derstood to have shown only one member who, from whatever cause, approved Mr. Eeverdy Johnson's Treaty. The inference may be fairly drawn that no other Senator shared Mr. Johnson's views. The opinion obtained somewhat extensively, in this country at least, that the Senate of the United States did take a somewhat decided notice of the Treaty, and that in rejecting the Treaty itself, as the Senate did, it swept away all the reasoning and argument in its defense, which thenceforth needed no further notice. But however this may be, the dis- patch which Earl Granville quotes establishes the fact that, at its date, the claims which Her Majesty's Government employs Mr. Johnson's dis- patch to controvert had been advanced. Historicallj^, therefore, they were then known. The date of this dispatch is more that two years before the meeting of the Joint High Commission. The citation of this dispatch by Her Majesty's Government would seem to bring to it a knowledge of the existence of these claims anterior to the meeting of the Joint High Commission, although we have elsewhere been told that their presentation to that Commission was a surprise. Soon after the reception of this dispatch of Mr. Johnson's by his Gov- ernment, he ceased to be its representative at the Court of St. James. Those who know Mr. Johnson's social and geaial qualities will not be surprised to find that Lord Granville, not content with citing his oflftcial dispatch in explanation of the conversation, proceeds to cite in defense of the British side of the question, a professional letter of Mr. Johnson, written several months after his retirement from public life. In an instruction from this Department to Mr. Motley, (Mr. Johnson's successor as the representative of this Government,) dated May 15, 1869, informing him of the then recent action of the Seuateof the United States, on what was familiarly known as the " Johnson-Clarendon Treaty," the views of this Government are thus expressed in relation to the claims of the United States against theBritish Government: "Upon one point the Pres- ident and the Senate and the overwhelming mass of the people are con- COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 551 yinced, namely, that the Convention, from its character and terms, or from the time of its negotiation, or from the circumstances attending its negotiation, would not have removed the sense of existing griev- ance, would not have afforded real, substantial satisfaction to the peo- ple, would not have ])roved a liearty, cordial settlement of pending questions, but would have left a feeling of dissatisfaction, inconsistent with the relations which the President desires to have firmly established between two great nations of common origin, common language, common literature, common interests and objects in the advancement of the civ- ilization of the age." Tbe action of the United States Senate, as above shown, and the expression just quoted from my dispatch of May 15, 1869, to Mr. Mot- ley, furnish a correct history of the attitude of the Government of the United States in relation to the whole subject, at a time contemporane- ous with the expression of Mr. Johnson upon which Earl Granville places so much reliance. The support which Her Majesty's G-overn- ment can derive from Mr. Johnson's dispatch seems to me very slender. To show that the United States continued to maintain this position in relation to the claims, it may not be out of place to call your atten- tion to the language of my instruction to Mr. Motley of September 25, 1869, in which occurs the following expression of the views then enter- tained by this Government : "The President is not yet prepared to pro- nonnce on the question of indemnities which he thinks due by Great Britain to individual citizens of the United States, for the destruction of their property by rebel cruisers fitted out in the ports of Great Brit- ain. ISTor is he now prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast na- tional injuries it has inflicted on the United States. Nor does he at- tempt now to measure the relative effect of the various causes of injury, as whether by untimelj' recognition of belligerency, by suffering the fit- ting out of rebel cruisers, or by the supply of ships, arms, and munitions •of war to the Confederates, or otherwise in whatever manner. * * * All these are subjects of future consideration, which, when the time for action shall arrive, the President will consider," &c. It seems strange that this language should have failed to make evident the existence of a serious complaint on the part of this Government on account of the national losses and injuries consequent upon the increased rates of in- surance, the transfer of the merchant marine of the United States to Oreat Britain, and the increased expenditure caused by the prolonga- tion of the war for the suppression of the rebellion. That the idea of a claim on the part of the United States for indirect damages for national losses was even then neither new nor obscure in the minds of eminent British statesmen, 1 need but refer again to the opinions expressed by Lord Cairns and Professor Bernard, quoted in my note of the 16th of April. I see no reason to qualify what I then found occasion to say : "At every stage, therefore, of the proceedings, from November, 1862, when Mr. Adams ' solicited redress for the national injuries sustained,' to the date of the Treaty, this Government has kept before that of Great Britain her assertion of the liability of the latter for what are now termed the indirect injuries." Earl Granville surely ■cannot dismiss the uninterrupted and consistent assertion of the claims of the United States against Great Britain for national losses sufl'ered by the former, in consequence of a disregard of national obligations by the latter. It remains to notice one other passage in the dispatch of Earl Gran- ville, alluding to my reference, in the note of the 16th of April, to the 552 TREATY OF WASHINGTON. work of Professor Bernard. His Lordship says : "Still less can tbey (Her Majesty's Government) admit that because Mr. Bernard, in the 14th chapter of his work, gave certain extracts from Mr. Fish's dis- patch, under the head of 'Alabama claims,' that dispatch became the standard by which the claims known as Alabama claims were to be measured." Here again his Lordship repels what was not proposed. Mr. Bernard was quoted to show that Her Majesty's Government entered upon the negotiation of the Alabama question with a knowledge of the existence of the claims of the United States for indirect losses. There was no suggestion that the dispatch which Mr. Bernard quoted was to be a standard of measure, but that the fact of quoting by Mr. Bernard showed knowledge on his part of the existence and nature of claims, which elsewhere was denied. His Lordship then proceeds : " It hap- pens, moreover, that in the extracts given by Mr. Bernard, in the chap- ter to which Mr. Fish refers, the three passages cited by Mr. Fish in his present dispatch as relating to indirect injuries and national losses are omitted." I am bound to suppose that the repeated apparent denial of what was- not asserted is the result or consequence of the haste in which his Lord- ship's note was given to the press. In my dispatch to you I had not said that the passages cited by me were among the extracts given by Mr. Bernard "in the chapter" to which I referred. My language was, "/» this work he summarizes an instruction," &c. I have, therefore, to- repeat what I said, namely, that the passages cited by me appear iu Professor Bernard's work; and I must direct your attention to the fact that, while Lord Granville denies (what was not asserted) that these passages do not appear in a certain chapter, he does not deny (what- ever may be the impression casually produced by his language) what I asserted, namely, that the passages do appear in Professor Bernard's work. I refer to pages 492 and 493, where they will be found. Eeferring to a former dispatch of mine. Lord Granville thinks that it is apparent that the " vast national injuries" presented in it are ascribed to other causes than the acts committed by the Confederate cruisers, and among other extracts from the dispatches he quotes me as saying, " nor does he (the President) attempt now to measure the relative effect of the various causes of injury, as whether by untimely recognition or belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or oth- erwise in whatever manner." With regard to the interview of Mr. Adams with Lord Eussell, in March, 1863, the statement by the latter that the former had referred to the Confederate loan as "additional proof" of what Mr. Adams had alleged to exist, has been advanced to prove that Mr. Adams was not speaking of the subject which he sought the interview to discuss, but of something of which neither he nor Lord Eussell made any mention. Here the argument appears to be of the same nature, that because some "additional" causes of complaint other than those put forward before the Joint High Commission, and before the Arbitrators at Geneva, have been advanced in some correspondence on the part of this Government, that a certain class of claims are not included under the head of "Alabama claims." Lord Granville says, " Mr. Fish gives as a reason for no claims for national losses having been 'defined' or 'formulated,' that Lord Eussell objected in July, 1863, to any claims being put forward." A reference to my dispatch to you of the 16th of April last shows me as giving a different reason. I said, " During the war these claims. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 553 were continually arising and increasing, and could not then be defined, and the time for formulating them would not arise until a willingness to enter upon their consideration arose." Lord Kussell's objections were mentioned, it is true, in addition to the reason above quoted, but although "additional," they are not therefore exclusive. The communications which the British High Commissioners may have made to their Government, either pending tjie negotiation or since, can scarcely be urged with seriousness upon this Government for ac- ceptance in the construction of the Treaty. One of those gentlemen is reported as saying recently " that we, the (British) Commissioners, were distinctly responsible for having represented to the Government that we (they) understood a promise to be given that these claims were not to be put forward, and were not to be submitted to arbitration." He does not say by whom, on what occasion, or in what manner, such promise was made. He involves all his colleagues in the representation made to their Government, that such promise had been made. But this seeking aliunde, outside of the Treaty and of the Protocol, to estab- lish a meaning or to explain its terms, has had the effect, which the honorable baronet who made the declaration anticipated, to raise " a personal question," and I cannot allow this reference made by Lord Granville to the information furnished to Her Majesty's Government by Her High Commissioners to pass without alluding to the representation which Sir Staftbrd Northcote (one of those Commissioners) Says that the commissioners are responsible for having made to their Government. In justice to myself and my colleagues on the American side of the Commission, I must take this occasion (the first that has presented itself since I have seen the speech of Sir Stafford Northcote) to say that no such promise as he states that the British Commissioners represented to their Government, as having been understood by them to be made by the American Commissioners, was in fact ever made. The official com- munications between the American and the British Commissioners (as you are aware) were all made by or to me as the first-named of the American Commissioners. I never made and never heard of any such promise, or of anything resembling a promise on the subject referred to. None was ever made by me, formally or informally, officially or unofficially ; and I feel entire confidence in making the assertion that none of my colleagues ever made any promise or any declaration or stateinent approaching to a promise on the subject. What may have been the understanding of Sir Stafford Northcote, or of his colleagues, I cannot undertake to say, but that the American Commissioners gave him or them any grounds to un- derstand that such a promise was given, as he says they represented to their Government as having been made, I am bound most respectfully but most emphatically to deny. I cannot conceive from what he has imagined it, as the only direct allusion to the three classes of claims (called the " indirect claims") was that made on the part of the Ameri- can Commissioners on the 8th day of March, and is set forth in the 36th Protocol in the words in which it was made. The British Government has, in the correspondence which has recently taken place, endeavored to construe the withholding of an estimate of those " indirect claims " in connection with a proposition on behalf of this Government, which was declined by the British Commissioners, into their waiver. I have already discussed that question, and shall not here again enter upon its refutation. The Protocols and the state- ment approved by the Joint Commission furnish the substantial part of what passed on that occasion. I am at a loss to conceive what rep- 554 TREATY OF WASHINGTON. resentation, outside of the statement made in the 36th Protocol, Sir Stafford Korthoote can have made to his Government. He refers to some " personal question," something which, until the time of his ad- dress, he and his colleagues had been under official restraint from dis- cussing, but the Protocols and the statement to which I have referred had been before the public both in G-reat Britain and in the United States for nearly a year before his declaration. It is only within a day or two that the journals containing his address have reached me. I have this day addressed a letter to yourself and to each of our colleagues on the Commission, calling attention to Sir Stafford's statement, and in due time may make public the correspondence. Returning to Lord Granville's dispatch in the supplement to the Lon- don Gazette, I find little else that has not already been discussed or that requires further reply. It may, however, be noticed that the remote or consequential nature of claims does not appear to have been a serious objection to the presenta- tion of such claims on the part of the British Government against the United States. Lord Granville, in the dispatch in the supplement, recalls the fact that the British Commissioners repeatedly put forward the Feniau raid claims, but not until the 3d of May, (after the American Commissioners had declined to treat on them,) did the British Commis- sioners admit that a portion of the claims were of a constructive and inferential character, having thus i)ersistently, for nearly two months, kept before the Commissioners those constructive claims. Jt is not necessary now to consider the relative admissibility of "constructive" and of "indirect" claims, as the ground for pecuniary compensation against a Government, under the principles of International Law. His Lordship again refers to the case presented by the British Gov- ernment to the Claims Commission, sitting in this citj', for the Confed- erate cotton loan. While questioning the accuracy of my statement, that " the United States calmly submitted to the Commission the decis- ion of its jurisdiction," he proceeds to establish its accuracy by stating the motion made by the Counsel of this Government to dismiss the claim. If the British Government will follow this example, and move the Tribunal at Geneva to dismiss the claims which it thinks are not included in the submission of the Treaty, a similar result may be obtained, and the benefits of the Treaty and of the principles of peace- ful arbitration of grave differences between nations may be established. I am, sir, your obedient servant, HAMILTON FISH. [Inclosure in No. 86.] Earl Russell to Lord Lyons. Foreign Ofpicb, March 27, 1863. My Lord: Mr. Adams having asked for au interview, I had along conversation with him yesterday at the Foreign Office. He read me a disp.atch of Mr. Seward ou the subject of the Alabama and Oreto. la this dispatch, which -was not unfriendly in its tone, Mr. Seward complains of the depredations on American commerce committed by vessels iitted out in British ports, and manned, for the most part, by British sailors. He alludes to the strong feeling excited iu the United States by the destruction of her trading vessels and their cargoes. He repeats the complaint common iu America, that England is at war v\'itli the United States, -while the United States were not at war -with England. He expre.sses his hope that Great Britain, in execution of her own laws, will put an end to the fitting out of such vessels to prey on the commerce of a friendly nation. I said that the phrase that England was at war CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 556 with America, but America was not at war with England, was rather a ligure of rhet- oric than a true description of facts. That the facts were that two vessels, the Oreto and the Alabama, had eluded the operation of the Foreign-Enlistment Act, and had, against the will and purpose of the British Government, made war upon American commerce in the American seas. That the fitting out of the Alabama, the operation against which the Foreign-Enlistment Act was especially directed, was carried on in Portuguese waters at a great distance from any British port. That the most stringent orders had been given long ago to watch the proceedings of those who might be sus- pected of fitting out vessels of war for Confederate pnrposas. That if there were six vessels, as it was alleged, fitting out in British ports for such purposes, let evidence be forthcoming, and the Government would not hesitiate to stop the vessels, and to bring the offenders^before a court of justice. That Mr. Adams was no doubt aware that the Government must proceed according to the regular piocess of law and upon sworn testimony. Mr. Adams, on the other hand, dwelt on the novelty and enormity of this species of warfare. He said that if a belligerent could tit out in the ports of a neutral swift armed vessels to prey upon the coramerce of its adversary, the commerce of that bel- ligerent must be destroyed, and a new and terrible element of warfare would be intro- duced. He was sure that England would not suffer such conduct on the part of France, nor France on the part of England. He should be sorry to see letters of marque is- sued by the President ; but there might be no better resource than such a measure. I said I would at once suggest a better measure. Mr. Seward had said to Lord Lyons that the crews of privateers had this advantage — that they reaped the whole benefit of the prizes they took, whereas the crews of men-of-war were entitled to only half the value of the prizes tliey toolr. Let the President, I said, offer a higher reward for the capture of the Alabama and Oreto to the crews of men-of-war than even the entire value of those vessels. Let him offer double their value as a gratuity, and thus confine his action to officers and men of the United States Nasry, over whom he could keep a control, and who were amenable to the laws which govern an honorable profes- sion. But what could Mr. Adams ask of the British Government i What was his pro- posal ? Mr. Adams said there was one thing which might be easily done. Jt was supposed the British Government were indifferent to these notorious violations of their own laws. Let them declare their condemnation of all such infractions of law. With respect to the law itself, Mr. Adams said either it was sufficient for the purposes 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 ; that the British Government had done every- thing in its power to execute the law ; but I admitted that the cases of the Alabama and Oreto were a scandal, and in some degree a reproach to our laws. Still, I said it was my belief that if all the assistance given to the Federals by British subjects and British munitions of war were weighed against similar aid given to the Confederates, the balance would be greatly in favor of the Federals. Mr. Adams totally denied this proposition. But above all, he said, there is a mani- fest conspiracy in this country, of which the Confederate loan is an additional proof, to produce a state of exasperation in America, and thus bring on a war with Great Britain, with a view to aid the Confederate cause, and secure a monopoly of the trade of the Southern States, whose independence these conspirators hoped to establish by these illegal and unjust measures. He had worked to the best of his power for peace, but it had become a most difficult task. Mr. Adams fully deserves the character of having always labored for peace between our two nations, nor, I trust, will his efforts and those of the two Governments fail of success. I am, &c., RUSSELL. No. 87. Mr. Fish to General Schenclc. [Telegram.] Washington, June 4, 1872. The Government of the United States differs entirely from the opinion expressed in Lord Granville's note to you, that it is not necessary for 556 TREATY OP WASHINGTON. the Agents to present the arguments of the respective Governments on the 15th. The fifth Article of the Treaty requires that the arguments be presented within a specified time, which time will expire on the 15th. Being a treaty requirement, the Executive Department of the Gov- ernment cannot depart from its obligations, and has not the power to consent to a change of its terms. If an adjournment is contemplated by Great Britain, with the idea of future negotiation, it is right that, with reference to the Senate Article, it should be understood that this Government cannot negotiate on a proposition which involves the idea that it maybe guilty of intentional ill faith, or of willful violation of its international duties, or that it re- gards such acts on the part of another Power the subject of compensa- tion by the payment of damages in money. •^ FISH. .[From British Blue Book "North America," No. 9, (1872,) p. 37.] So. 88. Memorandum read by Lord Granville in the Souse of Lords. I have spoken to General Schenck as to the annoyance which has been felt in and out of Parliament at the publication in the United States of the pai)ers submitted to the Senate in their secret session. I told him that, for obvious reasons, I much regretted it, but that I believed that it was no act of the Government of the United States. Sir E. Thornton had informed me that these papers had been surrep- titiously obtained. General Schenck told me that he believed that the Government of the United States had not, through any of its Departments — the President, the Senate, or the Secretary of State — been a party to the publication of that correspondence. It appeared to have got out surreptitiously through the enterprise (if it may be called by so innocent a name) of the news- Tiapers. I have also spoken to General Schenck, and alluded to the unfavor- able impression which has been created by certain passages in that cor-- respondence wherein Mr. Eish declares the determination of the Presi- dent to maintain the indirect claims before the Tribunal of Geneva. I told General Schenck that, from the various conversations which 1 have held with him, and from his written communications, I have been led to believe that the position of the United States was this : The President held that the indirect claims were admissible under the Treaty; that the Treaty was made and ratified in that sense ; and that, therefore, although he might by interchange of notes or otherwise, agree not to press for compensation for those claims, yet as being within the scope of the Treaty, it was not in his power to withdraw them — that could only be done by the exercise of the full Treaty-making power, including the concurrence of the Senate ; that it was for this purpose that the President preferred, instead of an interchange of notes, that Her Majesty's Government should adopt a supplementary Article, which for some sufBcient consideration might enable the Government of the United States to declare that they would make no claim for such losses, and that the Arbitrators would thereby be prevented from entertaining these indirect claims. COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 557 General Schenck iufbrmed me that he agreed with me in my construc- tion of what had passed, and I have submitted to him this report of our conversation. I read this in the House of Lords last night. Foreign Oppice, June 4, 1873. No. 89. General Schenck to Mr. Fish. [Telegram.] London, June 5, 1872. (Received at 10.45 a. m.) Opposition members in Parliament have strange and unworthy suspi- cions and fears that the last clause of the Article, although in the lan- guage of their own Government, is not explicit enough to prevent the indirect claims from being again brought forward. Might we not offer that if this Government will accept the Senate language for the expres- sion of the rule, we will agree to the last clause of their form, as com- municated to you in my telegram of the 31st May, adding thereto the words "but will thereupon abandon those several enumerated claims as a cause of difference between the two countries to be considered by the Arbitrators in making their award." SOHENCK. 1^0. 90. Mr. Fish to General Schenclt. [Telegram.] Washington, June 5, 1872. We cannot agree to the suggestion in your telegram of this date. This Government deals with the British Government, and not with oppo- sition members of Parliament. If that Government adopts the unworthy suspicions and fears referred to in your telegram, and advances them as reasons for modifying the proposed Article, or suggests that this Gov- ernment will not in good faith act upon the agreement contained therein, all further negotiations must cease at once. If it does not adopt or entertain those suspicions, there is no reason for proposing to alter the language which was proposed by itself, has been accepted by us,, and which is sufficiently explicit. You may say that this Government regards the new rule contained in the proposed Article as the consideration, and will accept it as a final settlement of the three classes of the indirect claims put forth in our Case, to which they objected. It is useless to expect that any change can be made in the Article as agreed to by the Senate. A treaty in the words which the Senate had agreed upon could be ratified by that body without debate and in a few minutes. Any change, however immaterial, would involve discussion and debate, and in the crowded state of their business would inevitably lead to the defeat of the Treaty. 558 TREATY OF "WASHINGTON. We think, also, that this Government has made a large concession for the sake of maintaining the important principles involved in the Treaty. It can make no more. FISH. No. 91. General SchencTc to Mr. Fish. [Telegram.— Extract.] London, June 6, 1872. (Keceived 5 p. m.) Your telegram of yesterday received this morning. # *"* * # * * You will do me the justice to believe I have had no exchange of views with anybody here but the Government, through the proper channel. I must also do justice to them ; they have not adopted or sympathized with the fears and suspicions of others in regard to the last clause of proposed Article, but defended it as sufficient. I, of course, vould have resented any intimation from them thUt my Government could possibly act in bad faith. * * * * * * * I knew your earnest desire to save the Treaty. I knew that, for the consideration expressed in the rule as amended by the Senate, the Gov- ernment of the United States intended to abandon altogether the three classes of indirect claims, and although I knew the difficulty of opening the main question in the Senate, I thought they might at once agree to show their friendly and sincere purpose by expressing that intention, even more distinctly than had been asked or needed, if by so doing their own expression of the rule could be secured. Late last night, I received from Lord Granville, after a long Cabinet session, three notes, which I send, but to which I have not replied. I will see him immediately, and communicate your views as to the uselessness of expecting change in the Senate Article, and will probably telegraph you again to-day. The first note is as follows : [_Earl Granville to General Sclienck.^ Sir: I laid before the Cabinet the telegraphic message from Mr. Fish, which you oommunicatecl to me on the 3d instant. That message is only in answer to a portion of the objections raised by Her Majesty's Government to the alterations in the draughtAr- ticle proposed by the Senate, and does not notice the other points to which I called your attention in my letter of the 28th ultimo, and which were intended to show that the effect of those alterations is to transfer the application of the adjectives "indirect" and "remote" from one subject with reference to which they have been used in the re- cent correspondence, viz, claims made as resulting "from the acta committed" by certain vessels, to a different subject, viz, those made as resulting from " the failure to ohseri-e neutral obligations." It is evident that a loss which is direct and immediate with refer- ence to the former subject may be indirect and remote with reference to the latter, and this appears to Her Majesty's Government to be actually the case with respect to the claims which it is assumed the Government of the United, States still intend to make before the Arbitrators. The Government of the United States must see that it is impossible for Her Maj- esty's Government to authorize Her Majesty's Minister at Washington to sign a treaty, the words of which appear to Her Majesty's Government to say one thing upon a mere understanding to the contrary effect. The second note is as follows: [Earl Granville to General SchencTc.} Sir: There is a difference of opinion between the Government of the United States and Her Majesty's Government as to the necessity of presenting the written or printed COREESPONDENCE EESPECTING GENEVA ARBITRATION. 559 arguments ou the 15tli of June. I beg to suggest to you that the fifth Article is directory; it speaks of something which it shall be the duty of the Agents of the two Governments to do within a certain time ; it does not say that the Treaty is to lapse if this duty is neglected or not performed by the Agents or Agent of both Gov- ernments, or of either of them. It would hardly be suggested that the Treaty would lapse if one only of the two Agents omitted to lodge a written or printed argument, such as this Article contemplates, yet there is no more reason for saying that such a written or printed argument to be then delivered is a si»e qua non of the Treaty if both Agents omit it than if only one does so. The Article is in its nature one of procedure only for the mutual information (it may be) of the parties, and entirely for the assist- ance of the Arbitrators, but mainly for the benefit and advantage of the parties them- selves, who, in such a matter, may or may not choose to avail themselves of it, nor would any practical inconvenience or disadvantage arise to either party (in case the arbitration proceed) from an agreement not to present such arguments until a later date, the Arbitrators having full power at any later date to admit such written or oral argu- ments as they may think fit. Her Majesty's Government would make no difficulty as to a suitable arrangement for the presentation of the argnments if a Convention were signed by Mr. Fish and Sir Edward Thornton and ratified by the Senate, although there was not time for the ratifications to be exchanged in London previously to the 15th of June. Third note thus : lEarl Granville to Gensral Sclunck.'] Sir : I have to state to yon that witii the view of obviating the diflioulty con- nected with the meeting of the Arbitrators at Geneva on the 15th instant, and the pre- sentation of the written or printed argument under the fifth Article of the Treaty on that day, Her Majesty's Government are still ready either to agree in an application to the Arbitrators on the 15th to adjourn at once without the presentation of the argument of either Government, or to conclude a new arrangement with the treaty-making power of the United States for the enlargement of the time ; or, instead of the amend- ments to the Treaty Article which Her Majesty's Government last proposed, they are willing to conclude it with the following additions : First, to insert after the paragraph, as altered by the Senate, the words, " the remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly from, and not directly from, acts of belligerents." Second, to insert after this paragraph another paragraph : " further, the stipulations of this Convention as to future conduct have no reference to acts of intentional ill faith or willfulviolation of international duties." The objections to nego- tiating on a proposition which involves the idea that either country may be guilty of intentional ill faith or willful violation of its international duties might be met by such a declaration as that proposed in the second of these additions being inserted in the Treaty Article, or, if the United States should prefer it, by an interchange of notes, approved by the Senate at the time of ratification. SOHBNOK. 2?o. 92. General Sclienclc to Mr. Fish. [Telegram.] London, June 6, 1872. (Received 7.20 p. m.) Since my former telegram to-day I have seen Lord Granville and stated to him that it is useless to expect that any change can be made in the Article sis agreed to by the Senate, and I communicated to him what you authorized me to say, that our Government would regard the new rule as consideration for and settlement of the three classes of in- 560 TREATY OF WASHINGTON. direct claims. I thought it best to put that part of my communication in formal writing and have handed him a note as follows : IGeneral Schench to Earl Gi-anville.'] My Lord: In the oouversation we liad yesterday and •which was i-esnraed this morning, you stated to me that Her Majesty's Government have always thought the language proposed by them in the draught Article as it stands sufficient for the purpose of removing and putting an end to all demand on the part of the United States in re- spect to those indirect claims which they put forth in their Case at Geneva, and to the admissibility of which Her Majesty's Government have objected, but that there were those who doubted whether the terms used were explicit enough to make that perfectly clear and to prevent those same claims from being put forward again. I concurred with you in your view as to the sufficiency of the language used in that clause of the proposed Article, and which the Government of the United States had accepted, and I repelled the idea that anybody should think it possible that the Government of the United States, if they should yield those claims for a consideration in a settlement be- tween the two countries, would seek to bring them up in the future or would insist that they were still before the Arbitrators for their consideration. I am now author- ized, in a telegraphic dispatch received to-daj' from Mr. Fish, to say. that the Govern- ment of the United States regards the new rule contained in the proposed Article as the consideration for and to be accepted as a final settlement of the three classes of the indirect claims put forth in the Case of the United States, to which the Govern- ment of Great Britain have objected. SCHEXCK. No. 93. Mr. Fish to General Schenck. [Telegram. — Extract.] Washington, June 7, 1872. Your telegrams of yesterday received last evening. I have been quite ill and unable to reply sooner or fuller. The first criticism on the language of the Senate amendment to the proposed Article is regarded as hypercritical and strained. It is so re- garded here generally, and a discussion upon it in the Senate or in the press would be inexpedient and would not tend to advance a settlement. The Senate is very imi^atient for adjournment; and the Senate, the public, and the press are impatient over the delays, and what they re- gard as either captious or dilatory objections and proposals to amend or explain what has been intended and proposed in the most perfect good faith. The new Article can be ratified, as I said in a recent telegam ; but if amendments be proposed or explanatory notes requiring the Senate's approval are submitted, it will be impossible to obtain ratification. To insist upon any such course is to defeat the Article. This Government cannot adopt the argument of Lord Granville re- specting the putting in of the arguments of both Governments on the 15th. We think the Treaty requires it to be done, and that' the require- ments can be dispensed with only by a treaty. The Senate will adjourn on Monday. I see no possibility of an agreement upon anything else than the Article as agreed to by the Senate. PISH. COERESPONDENCE RESPECTING GENEVA ARBITRATION. 561 No. 94. General Schendk to Mr. Fish. [Telegram.] London, June 7, 1872. (Eeceived 7 p. m.) I have just received the following from Lord Granville : \_Earl Granville to General ScJienclc.^ Sir ; In a telegram which I have this morning received from Sir Edward Thornton he remarlis with reference to the first of the two passages which, in my letter to you of the 5th instant, I stated that Her Majesty's Government proposed to insert in the Article, in lieu of the amendments last proposed by them, that Mr. Fish had frequently, in conversation with him, objected to the use of the word " belligerent," and wishes that indirect claims arising out of acts committed by persons other than recognized belligerents, as well as belligerents, should be agreed to be not admissible for the future. If Mr. Fish should still entertain the same opinion, Her Majesty's Government would be quite content that the passage in question should run thus : " The remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly, and not directly from acts of war." I only add that I have given Lord Grranville no ground for believing that you will assent to any expression of the rule except that of the Senate amendment. SCHENOK. No. 95. 21r. Fish to General Schenck. [Telegram.] Washington, June 8, 1872. The reference to any conversation with Thornton is unjustified. I have invariably told him, as I have told you, that it is useless to discuss amendments to the proposed Article. In my telegram of 31st, I said the British amendment left a large class of very probable cases unpro- vided for. In conversation with Thornton I told him the same, and in- dicated some of those cases arising from the use of the word "bellige- rent," but I indicated no change that was desired by me or by this Gov- ernment. I thought the amendment proposed objectionable, and the last suggested amendment in telegram of yesterday does not remove the objection, and I refer to my telegram of 5th and repeat emphatically the last clause. -^^r,^ FISH. •So. 96. General Schenclc to Mr. Fish. [Telegram.] London, June 8, 1872. I received your telegram of yesterday early this morning, and com- municated it immediately to Lord Granville. I supposed any new pro- 36 A— II 562 TREATY OF WASHINGTON. posals this Government might make, or any attempt to arrive at agree- ment after that, would be necessarily at Washington bet\Yeen you and Sir Edward Thornton, under such instructions as he might receive. I thought there was no room for new suggestions, but this evening Lord Granville sends me the following : lEarl Granville to General SchencTc.l Sir : It appears to Her Majesty's Government, from a review of tlie correspondence between the two Governments, that an agreement on the supplemental Article might probably be arrived at if safScient time were given for discussion. If, therefore, the Treaty is to be maintained, an adjournment of the meeting of the Arbitrators from the 15th instant has become absolutely necessary. With this view, I have the honor to propose that on the meeting of the Arbitrators on that day a joint application shall be made for an adjournment for eight months. If the Government of the United States concur in making an application for adjournment, it is the intention of Her Majesty's Government to deliver to the Arbitrators on the 15th instant the summary of their argument under the fifth Article of the Treaty, accompanied by a declaration, of which I have the honor to inclose you a copy for the information of your Government. " Sketch of draught note in presenting summary. "The undersigned Agent of Her British Majesty has the honor to deliver herewith to Count Sclopis, &c., the printed argument, showing the points and referring to the evidence on which the Government ot Her Britannic Majesty relies, as required by the fifth Article of the Treaty of Washington. The undersigned is instructed by the Gov- ernment which he represents to state that the printed argument is only delivered to the Tribunal conditionally on the adjournment, requested in the note which he had the honor to address to the Tribunal this day jointly with the Agent of the United States^ being carried into effect, and subject to the notice which the undersigned has the honor hereby to give, that it is the intention of Her Majesty's Government to cancel the ap- pointment of tlie British Arbitrator, and to withdraw from the arbitration at the close of the term fixed for the adjournment, unless the difference which has arisen between the two Governments as to the claims for indirect losses, referred to in the note which the undersigned had the honor to address to Count Sclopis on the 15th of April, shall have been removed." SCHENOK. ^"0. 97. General Schench to Mr. Fish. No. 252.] Legation of the United States, London, June 8, 1872. (Eeceived June 21.) Sir : I have the honor to forward herewith copies of all the corre- spondence which has taken place between Lord Granville and myself relative to the proposed new Treaty Article in regard to indirect claims, since the 31st ultimo. I am, &c., EOBT. C. SOHENCK. [luclosnre 1 in No. 97. ] Earl Grar,ville to General Schenck. FoKBiGN Office, June I, 1872. Sir : In reply to the communication which I received from you this morning, I beg' to inform you that Her Majesty's Government hold that by the Article adopted by the Senate, cases of bad faith and willful misconduct are brought within the scope of the proposed agreement which deals with pecuniary compensation. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 563 It appears to be tlie view of the Government of tlae United States tlaat snch cases are not a fit subject of pecuniary compensation, and I am informed by Sir Edward Thorn- ton that Mr. Fish is of opinion that the article adopted by the Seiiate is capable of im- provement. The President thiuts that the Article last proposed by Her Majesty's Government is also capable of improvement. The American Government state that " it is not believed that there is any such differ- ence of object between the two Governments in the definition and limitation which each desires to places upon the liability of a uentral, as to prevent an agreement on the lan- guage in which to express it, if time be allowed for the exchange of views by some other means than the telegraph." The British Government must decline to sign a treaty which is not in conformity with their views, and which does not express the principles which the American Gov- ernment believes to be entertained by both parties to the negotiation, and which, im- mediately after being signed, would become the subject of negotiation with a view to its alteration. In this position they repeat their readiness to extend the time allowed for the Arbi- tration to meet at Geneva, and they have, as your are aware, provided Sir E. Thornton with full powers to sign a treaty for this purpose ; or they are willing to concur in a joint application to the Tribunal of Arbitration at once to adjourn the proceedings of the arbitration, which they are advised it is within the competence of the Arbitrators to do upon such an application without a fresh treaty. I have, &c., GRANVILLE. [Inclosure 2 in No. 97.] General SeTienck to Earl Granville. Legation oe the United States, London, June 1, 1872. My Lord : I received an hour ago your note of this date, in which you reply to the telegram of Mr. Fish, which I communicated to you this morning, and inform me that Her Majesty's Government decline to sign a treaty of the character and with the ar- rangement for the future, suggested by Mr. Fish, but repeat their readiness to extend theT;ime for the Arbitrators to meet at Geneva, for which purpose Sir Edward Thorn- ton has full powers to sign a treaty ; or they are willing, you state, to concur in a joint application to the Tribunal of Arbitration to adjourn their proceedings, which they are advised it is within the competence of the Arbitrators to do upon such an application without a fresh treaty. I have sent the full text of your note to Mr. Fish by telegraph. I have, &c., ROBT. C. SCHENCK. llnclosnre 3 in No. 97.] Earl Granville to General Sekencli. Foreign Office, June 3, 1872. Sir • In reply to the question which you put to me this morning, I have to state to you that Her Maiesty's Government consider that the Arbitrators must no doubt meet on the 15th 6f June, but the fifth Article of the Treaty, though it contemplates the delivery of written arguments on that day, does not make the further prosecution of the arbi- tration impossible, if, on that day, neither party presents any written argument. The Arbitrators have full power to adjourn, and they have also full power to call, alter the 15th for any further statements or arguments, written or oral, from time to tinie, as they may think fit. If, therefore, both parties agree not to Present any argument till a later day than the 15th, requesting the Arbitrators to adjourn and ifjthe Arbitrators should, on any day to which they may have adjourned accept the argument which both parties may then wish to tender to them, this will be quite within their power. . I have, &c., GRANVILLE. 564 TREATY OF WASHINGTON. [Inclosure 4 in No. 97.] Earl Granville to General Sclienck. Foreign Office, June 5, 1872. Sir : I laid before the Cabinet the telegraphic message from Mr. Fish, which you com- municated to me on the 3d instant. That message is only in answer to a portion of the objections raised by Her Majesty's Government to the alterations in the draught Article proposed by the Senate, and does not notice the other points to which I called your attention in my letter of the 28th ultimo, and which were intended to show that the effect of those alterations is to transfer the application of the adjectives "indirect" and "remote" from one subject with reference to which they have been used in the recent correspondence, viz, claims made as resulting from the "acts committed" by certain vessels, to a different subject, viz, those made as resulting from "the failure to observe neutral obligations." It is evident that a loss which is direct and immediate with reference to the former subject, may be indirect and remote with reference to the latter, and this appears to Her Maj- esty's Government to be actually the case, with respect to the claims which it is as- sumed the Government of the United States still intend to make before the Arbitrators. The Government of the United States must see that it is impossible for Her Majesty's Government to authorize Her Majesty's Minister at Washington to sign a treaty, the words of which appear to Her Majesty's Government to say one thing, upon a mere understanding to the contrary effect. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. [Incloaure 5 in Ko. 97.] Earl Granville to General SchencT<. Foreign Office, Jane 5, 1872. Sir: There is a difference of opinion between the Government of the United States and Her Majesty's Government as to the necessity of presenting the written or printed arguments on the 15th of June. I beg to suggest to you that, 1st, the fifth Article is directory ; it speaks of something which " it shall be the duty of the Agents" of the two Governments to do within a certain time. It does not say that the Treaty is to lapse if this duty is neglected or not performed by the Agents or Agent of both Gov- ernments, or of either of them. 2d. It would hardly be suggested that the Treaty would lapse, if one only of the two Agents omitted to lodge a written or printed argu- ment, such as this Article contemplates. Yet there is no more reason for saying that such a written or printed argument, to be then delivered, is a sine qua non of the Treaty, if both Agents omit it, than if one only does so. 3d. The Article is, in its nature, one of procedure only, for the mutual information (it may be) of the parties, and entirely for the assistance of the Arbitrators, but mainly for the benefit and advantage of the parties themselves, who, in such a matter, may or may not choose to avail themselves of it. 4th. Nor would any practical inconvenience or disadvantage arise to either party (in case the arbitration proceeds) from an agreement not to present such argu- ments until a later date, the Arbitrators having full power at any later date to admit such written or oral arguments as they may think fit. Her Majesty's Government would make no difliculty as to a, suitable arrangement for the presentation of the arguments if a convention were signed -by Mr. Fish and Sir Edward Thornton and ratified by the Senate, although there was not time for the rati- tioatious to be exchanged in London previously to the 15th of .lune. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. [Inclosure 6 in No. 97,] Earl Grauville to Gener'al Schench. Foreign Office, June 5, 1872. Sir : I have to state to you that witli the view of obviating the difficulty connected with the meeting of the Arbitrators at Geneva on the 15th instant, and the preseuta- CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 565 tion of the -written or printed argument under the fifth Article of the Treaty on that day, Her Majesty's Government are still ready either to agree in an application to the Arbitrators on the 15th to adjourn at once withont the presentation of the argument. of either Government, or to conclude a new arrangement -with the treaty-making power of the United States for the enlargement of the time ; or, instead of the amendments to- the Treaty Article, -which Her Majesty's Government last proposed, they are willing to conclude it with the following additions: Eirst, to insert after the paragraph, as altered by the Senate, the words " the remote or indirect losses mentioned in this agree- ment, being losses arising remotely or indirectly and not directly from acts of belliger- ents." Secondly, to insert after this paragraph another paragraph : " Further, the stipulations of this Convention as to future conduct have no reference to acts of inten- tional ill-faith or willful violation of international duties." The objection to negotiating a proposition which involves the idea that either coun- try may be guilty of intentional ill-faith or willful violation of its international duties might be met by such declaration as that proposed in the second of these additions being inserted in the Treaty Articles, or, if the United States should prefer it, by an in- terchange of tTotes approved by the Senate at the time of ratification. I have the honor to be, sir, your most obedient, humble servant, GRANVILLE.. [Inclosure 7 in No. 97. J General Schenck to Earl Granville. Legation of the United States, London, June 6, 1872. My Lord : I had the honor to receive late last night your three notes of yesterday's date, containing several suggestions for a modification of the proposed supplementary Article, and with a further explanation of the views and reasons therefor of Her Maj- esty's Government, and in which you also present again suggestions and views in re- lation to questions about the meeting of the Arbitrators and the presentation of argu- ments on the 15th instant. Without commenting on or replying to these suggestions, views, or reasons which you desire to bring thus again and more specifically to the notice of my Government, I have to inform you that I have hastened to transmit the full text of each of these communi- cations by telegraph to Mrt Fish, at Washington. I have the honor to be, my Yord, with the highest consideration, your Lordship's most obedient servant, ROBT. C. SCHENCK. [luclosure 8 in No. 97.] General Schenck to Earl Granville. Legation op the United States, London, June 6, 1872. My Lord : In the conversation we had yesterday, and which was resumed this morn- ing, you stated to me that Her Majesty's Government have always thought the lan- guage proposed by them in the draught Article, as it stands, sufficient for the purpose of removing and putting an end to all demand on the part of the United States in re- spect to those indirect claims which they put forth in their Case at Geneva, and to the admissibility of which Her Majesty's Government have objected; but that there were those who doubted whether the terms used were explicit enough to make that perfectly clear, and to prevent those same claims from being put forward again. I concurred with you in your view as to the sufficiency of the language used in that clause of the proposed Article, and which the Government of the United States had accepted ; and I repelled the idea that anybody should think it possible that the Government of the United States, if they should yield those claims for a consideration in a settlement between the two countries, would seek to bring them up in the future, or would insist that they were still before the Arbitrators for their consideration. „. , . I am now authorized, in a telegraphic dispatch received to-day irom Mr. 1 ish, to say that the Government of the United States regards the new rule contained in the pro- posed Article as the consideration for, and to be accepted as, a final settlement ot the three classes of the indirect claims put forth in the Case of the United States to which the Government of Great Britain have objected. ^ , , . , I have the honor to be, with the highest consideration, my Lord, your Lordship s most obedient servant, ^^^^^ ^_ SCHENCK. 566 TREATY OF WASHINGTON. [Inclosure 9 in No. 97. | Earl Granville to General Schenck. Foreign Office, June 7, 1872. Sir: In a telegram, wbioh I have this morning received from Sir Edward Thornton, he remarks, with reference to the iirst of the two passages which, in my letter to you of the 5th instant, I stated that Her Majesty's Government proposed to insert in the article in lieu of the amendments last proposed by them, that Mr. Fish had frequently, in conversation with him, objected to the use of the word " belligerent," and wishes that indirect claims arising out of acts committed by persons other than recognized belliger- ents, as well as belligerents, should be agreed to be not admissible for the future. If Mr. Fish should still entertain the same opinion. Her Majesty's Government would be quite content that the passage in question should run thus: "The remote or indirect losses mentioned in this agreement, being losses arising re- motely or indirectly, and not directly, from acts of war." I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. [Inclosure 10 in No. 97.] General Schenck to Earl Granville. Legation of the United States, London, June 8, 1872. My Lokd : I received at seven o'clock last evening your note of yesterday referring to what Sir" Edward Thornton has stated to you in regard to Mr. Fish's objection to the word " belligerent," and suggesting a modification of language to obviate that objection. I transmitted the full text of your note by telegraph to Mr. Fish immediately. At the same time I informed him that I am giving your Lordship no ground for believing that the Government of the United States will be able now to assent to any change of the rule as expressed by the Senate amendment. I have the honor to be, with the highest consideration, your Lordship's most obedient servant, ROBT. C. SCHENCK. No. 98. 3Ir. Fish to General Sohenclc. [Telegram.] Depabtment op State, ^ Washington, June 9, 1872. Yoar telegram received at midnight. The proposal contained in Lord Granville's note of yesterday cannot be accepted by this Government. In my dispatch of June 2 I said that in the opinion of this Government the Arbitrators have the power to adjourn either on their own motion or on that of either party, and that if the arguments be put in on both sides on loth, and Great Britain moves for an adjournment, we will assent, but we cannot be parties to a joint application for adjournment. This Government has no reason to ask an adjournment, and if it abstain from resisting a motion to adjourn, it will do so from courtesy to Great Britain. Ifor can this Government directly or indirectly be a party to an agreement or understanding whereby Great Britain is to submit her argument to the Tribunal conditionally or under any protest or reserva- COEEESPONDENCE EESPECTING GENEVA ARBITRATION. 567 tion. The obligations of the Treaty are reciprocal, and no right is reserved to either G-overnment of any qualified action while the other is fulfllliug the spirit and the letter of the Treaty. The United States will feel itself bound to protest against a conditional presentation of the argument on the part of Great Britain, or any assumed reservation of right on her part to withdraw. If the British Government have the right or the desire to withdraw from the arbitration, or to cancel the appointment of their Arbitrator, they must do so without asking the consent of this Government. If such notice of withdrawal as is suggested in Lord Granville's note be given, it will be the duty of the American Agent and Counsel to repel it very decidedly, and in terms which self-respect will make neces- sary. Such notice would instantly terminate all further negotiations on the part of this Government. You will send to Davis copy of the pro- posed Article, and inform him fully of the present condition of the nego- tiation between the two Governments, and you will send a copy of your telegram of yesterday and of this reply, and will keep him advised of any further correspondence or proceedings. Send copies of all the recent correspondence necessary to inform him and the Counsel of what has been done. FISH. No. 99. Mr. Fish to Mr. Davis. [Telegram.] Department of State, Washington, June 9, 1872. Tou and the Counsel should be in Geneva on 15th regardless of any action which Great Britain may be supposed to be likely to take. If deemed necessary, notice must be given to Arbitrators that you will be there to deliver argument and to proceed according to the Treaty. I have telegraphed Scbenck to send you full information of present state of negotiations, with copies of recent correspondence, and especially of a note of Granville and of my reply of this date. Should any notice such as is indicated in Granville's note be given, a decided protest must be entered against any qualified or conditional appearance before the Tribunal. The course and the notice suggested by Granville will be not only a failure to observe her treaty obligations with this Government on the part of Great Britain, but will also be an indignity to the friendly Powers who have appointed Arbitrators to attend a Tribunal before which two parties are to appear in good faith. Use calm and measured language, avoiding menace or irritation in whatever is said. You will communicate this and other telegrams, and all information received from Schenck to Counsel, who will consider them addressed to them, and will please regulate their course accordingly. In the very great uncertainty as to the course which England intends to observe, it is difficult, if not impossible, to give instructions to meet the contingencies which may arise. If Great Britain put in her argument on 15th with- out any offensive notice, and then moves for an adjournment, you and Counsel on our side will say that the United States do not object to the adjournment. ^^^^ 568 TREATY OF WASHINGTON. No. 100. Mr. Davis to Lord Tenterden. Paeis, June 10, 1872, (Eeceived June 11.) My Loed : I have the honor to transmit herewith, for your Lord- ship's information, a copy of a letter this day addressed by me to each of the Arbitrators in the Tribunal of Arbitration constituted under the provisions of the Treaty concluded at Washington, May 8, 1871, be- tween the United States and Her Britannic Majesty. I have, &c., J. 0. BANOKOFT DAVIS. [Inclosure in !N"o. lOO.J Mr. Davis to M. Sclopis.'^ Paris, June 10, 1872. Sir : I have received from my Government instructions, in order to avoid possible misapprehensions, to inform yon that the United States will be present, by their Agent and Counsel, at the Hotel de Ville, in Geneva, on the 15th instant, pursuant to the order of adjournment made by the Tribunal on the 16th day of December last, and vill then and there be prepared to present their argument, in accordance with the re- quirements of the Treaty of May 8, 1871, and to hold themselves subject to such further directions of the Tribunal as may be made, under the provisions of the Treaty, upon the issues raised by the various papers which have been presented under the Treaty by the two Governments, now in the possession of the Tribunal. I have, &c., J. C. BANCROFT DAVIS. No. 101. General Schenck to Mr. Fish. [Telegram,] London, Jiine 11, 1872. (Received at 11.50 a. m.) Eeceived yesterday morning your telegram of 9th, and communi- cated to Lord Granville immediately all except the instructions at the close. Late last night, after a long Cabinet, he sent me the following note: [Earl Granville to General ScliencTc.'] Sir : Her Majesty's Government understand that the Government of the United States decline any agreement between the two Governments, unless the Government of Her Majesty consent to sign the supplemental Article as altered by the Senate, to which Her Majesty's Government have stated their objections, or unless without any declaration as to our doing so 8ul) modo they agree to take a further step in the proceed- ings before the Arbitrators, while a misunderstanding exists as to what both parties agreed to submit to arbitration. Mr. Fish states to you that the Government of the United States have no reason to ask for an adjournment of the Arbitration at Geneva. The reason which actuated Her Majesty's Government in proposing it was to obtain time for the conclusion of an agreement at which both parties had already nearly arrived. Her Majesty's Government will have now to consider what may be the course ' Similar letters were addressed to Baron Itajuba, M. J. Staemplii, Mr. Adams, and the Lord Chief Justice. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 56£ most consistent with the declarations they have heretofore made most respectful to the Tribunal of Arbitration and the most courteous to the United States. The Britisl Arbitrator will proceed to Geneva, and at the meeting of the Tribunal the Britisl Agent will be directed to present to them a statement to the following effect : " Her Majesty's Government regret to be under the necessity of informing the Arbi trators that the difference between Her Majesty's Government and the Government o: the United States referred to in the note which accompanied the presentation of the British Counter Case on the 15th of April last, has not yet been removed. Her Majesty'i Government have, however, been engaged in negotiations with the Government of th( United States, which have continued down to the present time, for the solution of the difficulty which has thus arisen, and they do not abandon the hope that, if furthei time were given for that purpose, such a solution might be found practicable. Undei these circumstances, the course which Her Majesty's Government would respectfuUj request the Tribunal to take is to adjourn the present meeting for such a period as maj enable a supplementary convention to be still concluded and ratified between the High .Contracting Parties. In the mean time the High Contracting Parties not being in accorc as to the subject-matter of the reference to arbitration. Her Majesty's Government regret to find themselves unable to deliver the written argument, which their Agent ii directed to put in under the fifth Article of the Treaty, (although that argument hai been duly prepared and is in the hands of their Agent,) or to take any other steps ai the present time in the intended arbitration. It will of course be understood by th( Tribunal that Her Majesty's Government (while they would consider the Tribunal t( have full power to proceed at the end of the period of adjournment if the differenc( between the High Contracting Parties should then have been removed, notwithstandinj the non-delivery on this day of the argument by the British Agent) continue, while re- questing this adjournment, to reserve all Her Majesty's rights in the event of an agree ment not being finally arrived at in the same manner as was expressed in the noti which accompanied the British Counter Case." SGHEIsrCK. ^0. 102. General Schenck to Mr. Fish. [Telegram.] London, June 11, 1872. (Received at 3.40 p. m.) Have acknowledged Lord Granville's note telegraphed you this motn ing, saying I have transmitted it to my Government, at Washington ■where I have no doubt it ■will be received and considered in the same friendly spirit in whicli it is intended, and as a sincere effort yet to pre serve the Treaty between the two countries. SCHENGK. No. 103. General SchencTc to Mr. Fish. [Telegram.] London, June 12, 1872 — 3. 45 p. m. (Eeceived at 10.45 p. m.) Have this moment received another long communication^ from Lore Granville. It is in a very friendly spirit. He recapitulates the historj of the negotiation for a supplementary Article, and then proceeds as follows : [^Earl Granville to General SchencTc.} Her Majesty's Government believe, therefore, that they have met all the objections so far as they have been informed of them, which have been from time to time advancec to the suggestions which they have made, and that this recapitulation of the negotia ' For full text of this note see p. 573. 570 TREATY OF WASHINGTON. tion shows tlaat, unless Her Majesty's Government have erred in their view of the prob- able intention of the Senate, the two Governments are substantially agreed, or that, if there is any difference between them in principle, it is reduced to the smallest propor- tions. On the other hand, the objections which Her Majesty's Government entertain, and have expressed, to the language of the amendments made by the Senate, are founded tipon reasons to which they attach the greatest importance, though they think it pos- sible that the Senate did not intend to use that language in the sense which, according to the view of Her Majesty's Government, the words properly bear. The Government of the United States have stated in the telegraphic message from Mr. Fish, to which I have already referred, that there are some cases not provided for in the words suggested by Her Majesty's Government on the 30th of May. If the Gov- ernment of the United States are of opinion that these cases are not covered by the last proposed form of Article, and will state what are the cases in question, Her Majesty's Government cannot but think that the two Governments might probably agree upon a form of words which would meet them without being open to the objections which, they have felt to the wording of the Article as proposed by the Senate. Her Majesty's Government have never put forward their words as an ultimatum, and they will be willing to consider at the proper time other words, if an adjournment is agreed upon. I shall make no reply at present to this communication, not having from you any answer to or comment on Granville's note of 10th, tele- graphed yesterday morning. Have sent Davis copies of all notes and telegrams. He goes to Geneva to-morrow. * SCHENCK. No. 104. General ScliencJc to Mr. Fish. UsTo. 254.] Legation of the IJnited States, London, June 13, 1872. (Received June 25.) SiE: With this I transmit copies of all correspondence with the Foreign Office. I send also reports of proceedings in both Houses of Parliament, and articles from the leading 'joarnals since that date, which will serve to inform you better than anything else could do of the excitement and anxiety here occasioned by the imminent prospect of the failure of the arbitration at Geneva. Up to this time I am without any reply from you to my two telegrams of the 11th, and one of yesterday, (12th,) and I am, therefore, unable to inform Lord Granville whether you are willing to give any consideration to his last two communications. You have probably, however, tele- graphed your further views and instructions direct to Mr. Davis. He goes from Paris to Geneva to-day, and has been furnished with copies of all notes and telegrams relating to recent negotiations and the points that have been in controversy. I have the honor to be, sir, your obedient servant, EOBT. C, SGHENCK. [Inclosure 1 in 'Ko, 104.] JSai-l Granville to General Schenok. Foreign Office, June 8, 1872. Sir: It appears to Her Majesty's Government from a review of the correspondence between the two Governments that an agreement on the supplemental Article might probably be arrived at, if sufittcient time were given for discussion. If, therefore, the COEEESPONDENCE EESPECTING GENEVA AEBITEATION. 571 Treaty is to be maiutained, an adjournment of the meeting of the Arbitrators from the l&th instant has become absolutely necessary. With this view I have the honor to propose that on the meeting of the Arbitrators on that day, a joint application shall be made for an adjournment for eight months. If the Government of the United States concur in making an application for adjourn- ^il}^ •* intention of Her Majesty's Government to deliver to the Arbitrators on the 15th instant the summary of their argument under the fifth Article of the Treaty, accompanied by a declaration of which I have the honor to inclose you a copy for the information of your Government. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GEANVILLE. [Inclosure 2 in No. 104.] Sketch of draught note in presenting summary. The undersigned Agent, of Her Britannic Majesty, has the honor to deliver herewith to Count Sclopis, &c., the printed argument, showing the points and referring to the evidence on which the Government of Her Britannic Majesty relies, as required by the fifth Article of the Treaty of Washington. The undersigned is instructed by the Government which he represents to state that this printed argument is only delivered to the Tribunal conditionally on the adjourn- ment requested in the note which he had the honor to address to the Tribunal this day, jointly with the Agent of the United States, being carried into eifect, and subject to the notice, which the undersigned has the honor hereby to give, that it is the intention of Her Majesty's Government to cancel the appointment of the British Arbitrator, and to withdraw from the arbitration at the close of the term fixed for the adjournment, unless the difference which has arisen between the two Governments as to the claims for indirect losses referred to in the note which the undersigned had the honor to ad- dress to Count Sclopis on the 15th of April shall have been removed. [Inclosure 'i iu No. 104.] General Schenck to Earl Granville. Legation of the United States, London, June 8, 1872. My Lord : I have received this evening (7.30 p. m.) your note of to-day's date, com- municating for the information of )uy Government a copy of a sketch of draught note to be used in presenting to the Arbitrators a summary of their argument orf the 15th instant, such draught note being based on a proposed application for an adjournment of the arbitration for eight months. I shall immediately transmit your note and the inclosure by telegraph to Mr. Fish. I have the honor to be, with the highest consideration, your Lordship's most obe- dient servant, EGBERT C. SCHETSfCK. flnclosiire 4 in No. 104,] Earl Granville to General Schenok. Foreign Office, June 10, 1872. SiK: Her Majesty's Government uuderstand that the Government of the United States decline any agreement between the two Governments, unless the Government of Her Majesty consent to sign the supplemental Article as altered by the Senate, to ■which Her Majesty's Government have stated their objections, or unless they agree, without any declaration as to their doing so sub modo to take a further step in the pro- ceeding before the Arbitrators, while a misunderstanding exists as to what both parties agreed to submit to arbitration. 572 TREATY OF WASHINGTON. Mr. Fish states to you that the Government of the United States have no reason to ask for an adjournment of the arbitration at Geneva. The reason which actuated Her Majesty's Government in proposing it, was to obtain time for the conclusion of an agreement at which both parties had already nearly arrived. Her Majesty's Government will have now to consider what may be the course most consistent with the declarations they have heretofore made, most respectful to the Tribunal of Arbitration, and the most courteous to the United States. The British Arbitrator will repair to Geneva, and at the meeting of the Tribunal the British Agent will be directed to present them a statement to the following effect : " Her Majesty's Government regret to be under the necessity of informing the Arbi- trators that the difference between Her Majesty's Government and the Government of the United States, referred to in the note which accompanied the presentation of the British Counter Case on the 15th of April last, has not yet been removed. Her Majes- ty's Government have, however, been engaged in negotiations with the Government of the United States, which have continued down to the present time, for the solution of the difficulty which has thus arisen ; and they do not abandon the hope that, if fur- ther time were given for that purpose, such a solution might be found practicable. " Under these circumstances, the course which Her Majesty's Government would respectfully request the Tribunal to take is, to adjourn the present meeting for such a period as may enable a supplementary convention to be still concluded and ratified between the High Contracting Parties. "In the mean time, the High Contracting Parties not being in accord as to the sub- ject-matter of the reference to arbitration. Her Majesty's Government regret to find themselves unable to deliver the written argument which their Agent is directed to put in under the Vth Article of the Treaty, (although that argument has been duly pre- pared, and is in the hands of their Agent,) or to take any other step at the present time in the intended arbitration. " It will, of course, be understood by the Tribunal that Her Majesty's Government (while they would consider the Tribunal to liave full power to proceed at the end of the period of adjournment, if the difference between the High Contracting Parties should then have been removed, notwithstanding the non-delivery on this day of the argument by the British Agent) continue, while requesting this adjournment, to reserve all Her Majesty's rights in the event of an agreement not being finally arrived at, in the same manner as was expressed in the note which accompanied the British Counter Case." I have the honor to be, with high consideration, sir, your most obedient, humble, servant. GRANVILLE. flnclosure. 5 iu No. 104.] General Schenck to Earl Granville. Legation of the United States, London, June 11, 1872. My Loud : I had the honor to receive late.last night your note of yesterday, refer- ring to the present state of the negotiations between the Government of the United States and Her Majesty's Government in relation to the proposed supplementary Arti- cle, or to an adjournment of the arbitration at Geneva ; and informing me that Her Majesty's Government will now have to consider what may be the course most consist- ent with the declarations they have heretofore made, most respectful to the Tribunal of Arbitration, and the most courteous to the United States. Your Lordship then proceeds to state that the British Arbitrator will repair to Geneva, where the British Agent, at the meeting of the Tribunal, will be directed to present them a statement to the effect that the difference between the two Governments referred to in the note which accompanied the presentation of the British Counter Case, not having been re- moved, although negotiations to that end have been engaged in and continued down to the present time. Her Majesty's Government do not abandon the hope that if fur- ther time were given for that purpose such a solution might be found practicable. And that, under these circumstances, the course which Her Majesty's Government would respectfully request the Tribunal to take is, to adjourn for such a period as may enable a supplementary convention to be still concluded and ratified between the High Contracting Parties. And you further inform me that, in the mean time, the High Contracting Parties not being in accord as to the subject-matter of the reference to arbitration. Her Majesty's Government regret to find themselves unable to deliver their written argument under the Vth Article oif the Treaty, although that argument is duly prepared and iu the hands of their Agent, or to take any other step' at the present CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 573 time in the intended arbitration. And you add that it will of course be understood by the Tribunal that while Her Majesty's Government would consider the Tribunal to have full power to proceed at the end of the period of adjournment, if the difference between the High Contracting Parties should then have been removed, notwithstanding the non-delivery on that day of the argument by the British Agent, they will continue, while requesting this adjournment, to reserve all Her Majesty's rights in the event of an agreement being finally arrived at, in the same manner as was expressed in the note which accompanied the British Counter Case. This note, my Lord, in its full text, I transmitted this morning to my Government at Washington, where I have no doubt it will be received and considered in the friendly spirit in which it is intended, and as a sincere effort yet to preserve the Treaty between the two countries; and I will not fail to communicate to you at the earliest moment the answer which may come from Mr. Fish. I have the honor to be, with the highest consideration, my Lord, Your Lordship's most obedient servant, ROBT. C. SCHENCK. [laclosure 6 in No. 104.] Earl Granville to General Schenck. FoEEiGN Omice, June 11, 1872. Sir : It may be useful that I should briefly recapitulate the negotiations which have passed with respect to the supplementary Treaty Article in order that there may be a distinct and connected record of thein. On the 10th of May Her Majesty's Government, although they considered that the proposal of the form of Article would come more conveniently from the United States Government, proposed the draught Article as originally forwarded to you on that day. This draught Article was substantially the same as the draught note, the interchange of which had formed the subject of previous correspondence. On the 26th of May Her Majesty's Government learned that the Senate had recom- mended the President to negotiate a convention on the basis of this draught Article, with the substitution of two other paragraphs for the fourth and fifth paragraphs of the English draught, as follows : " Whereas the Government of Her Britannic Majesty has contended in the recent correspondence with the Government of the United States as follows, namely : That such indirect claims as those for the national losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration at Geneva, to have been sustained by ' the loss in the transfer of the American commercial marine to the British flag ; the enhanced payments of insurance ; the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion ;' firstly, were not included, in fact, in the Treaty oi Washington ; and further, and secondly, should not be admitted in principle as grow- ing out of the acts committed by particular vessels, alleged to have been enabled to commit depredations upon the shipping of a belligerent by reason of such a want ol due diligence in the performance of neutral obligations as that which is imputed by the United States to Great Britain ; and whereas the Government of the United States has contended that the said claims were included in the Treaty ; and whereas both Governments adopt for the future the principle that claims for remote or indirect losses should not be admitted as the result of the failure to observe neutral obliga tions, so far as to declare that it will hereafter guide the conduct of both Governmenfe in their relations with each other : " Now, therefore, in consideration thereof, the President of the United States, by anc with the advice and consent of the Senate thereof, consents that he will make no clain on the part of the United States in respect of indirect losses, as aforesaid, before thi Tribunal of Arbitration at Geneva." Her Majesty's Government objected, as I informed you in my letter of the 27th o May, to the definition as therein expressed of the principle which both Government are prepared to adopt for the future, as too vague, and proposed the substitution of th words, " of a like nature," for the words, " for remote or indirect losses," and the substi tution of the words, " such want of due diligence on the part of a neutral," for th. words, " the failure to observe neutral obligations." On the 29th of Maj' you communicated to me the substance of a telegraphic dispatcl from Mr. Fish, stating that the Government of the United States declined to agree t these alterations, as the establishment of the principle embodied in the Article as assentei to by the Senate had been its object in adhering to that Article. You had previous! explained to me, on the preceding day, that what you considered that the Governmen of the United States desired was the establishment of a general principle to be applie 574 TREATY OF WASHINGTON. to cases as they might arise, and not limited to particular cases or circumstances which may or may not ever occur. Her Majesty's Government did not pretend that the words suggested, by themselves, were incapable of improvement, and made another proposal to you on the 30th of May, which they trusted would meet the views of both Governments, as follows : " Whereas the Government of Her] Britannic Majesty has contended in the recent correspondence with the Government of the United States as follows, namely : " That such indirect claims as those for the national losses stated in the Case pre- sented on the part of the Government of the United States to the Tribunal of Arbitra- tion at Geneva, to have been sustained by 'the loss In the transfer of the American com- mercial marine to the British flag ; the enhanced payments of insurance ; the pro- longation of the war ; and the addition of a large sum to the cost of the war and the suppression of the rebellion ;' firstly, were not included in fact in the Treaty of Wash- ington ; and further, and secondly, should not be admitted in principle as growing out of the acts committed by particular vessels alleged to have been enabled to comrnit depredations upon the shipping of a belligerent by reason of snch a want of due dili- gence in the performance of neutral obligations as that which is imputed by the United States to Great Britain ; "And whereas the Government of the United States has contended that the said claims were included in the Treaty ; "And whereas both Governments adopt for the fnture the principle that claims against neutrals for remote and indirect losses should not be admitted as resulting from the acts of belligerents, which such belligerents may have been enabled to com- mit by reason of a want of due diligence on the part of a neutral in the performance of neutral obligations, so far as to declare that this principle wiU hereafter guide the conduct of both Governments in their relations with each other : " Now, therefore, in consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States, before the Tribunal of Arbitration at Geneva, in re- spect of the several classes of indirect losses hereinbefore enumerated." On the 31st of May, Her Majesty's Government were informed by Sir E. Thornton that Mr. Fish acknowledged that the Article recommended by the Senate was capa- ble of improvement, and thought that the one proposed by Her Majesty's Government might also be improved, and believed that, with sufScient time, an agreement could be come to satisfactory to both countries, which have the same object. On the same night you communicated to me a telegraphic message from Mr. Fish, stating that "it is not believed that there is any snch difference of object between the two Governments in the definition and limitation which each desires to place upon the liability of a neutral as to prevent an agreement on the language in which to express it, if time be allowed for an exchange of views by some other means than the tele- graph," and that it appeared to the President that the form of Article last proposed by Her Majesty's Government left a large class of very probable cases unprovided for, and that he held (with reference to an observation in my letter to you of the 28th of May) " that the results of bad faith or willful misconduct toward either of the two govern- ments would never be the subject of pecuniary compensation." Her Majesty's Government, in their earnest desire to meet the views of the Govern- ment of the United States, thereupon made the proposal contained in my letter to you of the 5th instant, the effect of which is to leave the Article as proposed by the Sen- ate, with the addition merely of some few words of definition, which, if the intention of the Senate was that whijih Her Majesty's Government have been willing to believe, (though they think it insufficiently expressed,) do not in any way affect it in principle, viz : " The remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly, and not directly, from acts of belligerents," and of a declara- tion as to acts of willful violation of international duties, which might either be in- serted in the Article or made at the time of the exchange of ratifications. Having learnt, on the 7th instant, that the Government of the United States enter- tained objections to the use of the expression " acts of belligerents," Her Majesty's Government informed you that they were willing to change it to " acts of war." Her Majesty's Government believe, therefore, that they have met all the objections, so far as they have been informed of them, which have been from time to time ad- vanced to the suggestions which they have made, and that this recapitulation of the negotiation shows that unless Her Majesty's Government have erred in their view of the probable intention of the Senate, the two Governments are substantially agreed, or that, if there is any difference between them in principle, it is reduced to the small- est proportions. On the other hand, the objections which Her Majesty's Government entertain and have expressed to the language of the amendments made by the Senate, are founded upon reasons to which they attach the greatest importance, though they think it possi- ble that the Senate did not intend to use that language in the sense which, according to the view of Hei* Majesty's Government, the words properly bear. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 575 The Government of the United States have stated, in the telegraphic message from Mr. Fish to -which I have already referred, that there are some cases not provided for ill the words suggested by Her Majesty's Government on the 30th of May. If the Gov- ernment of the United States are of opinion that these oases are not covered hy the last proposed form of Article, and will state what are the oases in question. Her Majesty's Government cannot but think that the two Governments might probably agree upon a form of words which would meet them, without being open to the objec- tions which they have felt to the wording- of the Article as proposed by the Senate. Her Majesty's Government have never put forward their words as an ultimatum, and they will be willing to consider, at the proper time, other words, if an adjournment is agreed upon. I have much pleasure in taking advantage of the present occasion to request you to convey to the Government of the United States the appreciation by Her Majesty's Government of the frank and friendly declaration contained in your letter to me of the 6th instant, respecting the last paragraph of the draught Article. Her Majesty's Government had never supposed that the Government of the United States had differed from Her Majesty's Government in the sense attached to that por- tion of the Article, but they look upon the declaration made in your letter as an addi- tional proof of the anxiety, which they are confident is shared by both Governments, of bringing the negotiation to an honorable and successful issue. I have the honor to be, with the highest consideration, sii-, your most obedient, humble servant, GRANVILLE. No. 105. Mr. Fish to General Schencl: [Telegram.] Department of State, Washington, June 13, 1872. Telegraph and wri*-e to Davis, Hotel Beau Eivage, Geneva, as follows : See my telegrams to Schenck of second and ninth June. If arguments are filed in good faith, without offensive notice, we will assent to their motion for adjournment. ^ ' FISH. [From British Blue Book " North America," No. 10, (1872,) p. 2.] iiannels. I am, &c., HAMILTON FISH. No. 122. ISir E. Thornton to Mr. Fish. Washington, October 17, 1872. (lleceived October 17.) Sir : The Tribunal of Arbitration at Geneva, in the matter of the differences between Her Majesty and the United States of America, on which it was appointed to adjudicate, having brought its labors to a close, and pronounced, on the 14th ultimo, its final award. Lord Gran- ville has informed me that it has become his duty, in obedience to the Queen's commands, to instruct me to convey to the President Her Maj- esty's acknowledgments for the care and attention which Mr. Adams, the Arbitrator appointed by the President, bestowed on the impor- tant matter with which he was called upon to deal, and Her Majesty's high appreciation of the ability and indefatigable industry which that distinguished statesman displayed during the long-protracted inquiries and discussions in which he has been engaged. I am also instructed to submit to the President that he would be pleased to make known her Majesty's sentiments, as herein expressed, to Mr. Adams. I shall therefore feel much obliged to you if you will convey to the President the substance of the instructions which I have received, for the purpose of communicating which I shall do myself the honor of waiting upon him personally. I have, &c., EDWD. THORNTON. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 686 No. 123. Mr. Fish to Sir E. Thornton. Washington, October 22, 1872. Sir : I liave the honor to acknowledge the receipt of your note of the 17th instant, in which, after reference to the fact that the Tribunal of Arbitration at Geneva, in the matter of differences between the United States of America and Her Majesty, had brought its labors to a close and had pronounced its final award, you inform me of instructions from your Government to convey to the President Her Majesty's acknowl- edgments for the care and attention which Mr. Adams, the Arbitrator appointed by the President, bestowed on the important matter with which he was called upon to deal, and Her Majesty's high appreciation of the ability and indefatigable industry which that distinguished statesman displayed during the long-protracted inquiries and discussions in which he had been engaged. Also that you are instructed to submit to the President that he would be pleased to make known Her Majesty's sen- timents, as expressed in your note, to Mr. Adams. I have communicated the substance of your note to the President, who directs me to express the gratification with which he receives the intelligence of Her Majesty's appreciation of the manner in which Mr. Adams, whom he had named as one of the Arbitrators, had discharged the high duties intrusted to him. This expression which Her Majesty has been pleased to cause to be communicated will be made known to Mr. Adams immediately on his return to the United States, and will doubtless be appreciated by him as a recognition alike grateful and honorable of his efforts to act on the High Tribunal with the dignity and impartiality becoming a Judge. I have, &c., HAMILTON FISH. No. 124. No. 342.] General Schenck to Mr. Fish.^ Legation op the United States, London, February 7, 1873. Sir : With reference to my No. 341, I have the honor to inclose here with full reports from the Times and the Standard- of this morning oi the proceedings ia.both Houses of Parliament last evening. I have, &c., ' EOBT. C. SOHENCK. [Inclosure.] Extract from the Debates in the Souse of Commons as reported in the " Times" of Febru- ary 7, 1873. Mr. Gladstone. ■* * * Before parting with the portion of the speech of my righl honorable friend to which I have referred, I may say I think he is in error when he statei that the consent to what he terms an apology on our part— that is to say, to an express- 1 This correspondence, which has taken place since the President's Message of De cember 2, is added to that then sent to Congress, with which it is connected histor ically. 586 TREATY OF WASHINGTON. sion of regret for the fact of the escape of the Alabama irrespective of all questions of right or wroug connected with it— was a condition precedent to the negotiation with America. Mr. HoRSMAN. What I said was to the Arbitration. Mr. Gladstone. I think it was not. If my right honorable friend refers to the papers, ie will find that statement would iiot be borne out. Mr. HoRSMAN. It occurred at Washington. Mr. Gladstone. Well, if it occurred at Washington it was not in the nature of a condition precedent. The basis of the whole proceeding was to arrive at an arbitra- tion, and, therefore, the request for an explanation or expression of regret on our part was not a condition precedent to that proceeding. * * " > No. 125. Mr. Fish to General Schenck. No. 329.] Department op State, Washington, February 20, 1873. Sir: I have your No. 342 witli the debate in Parliament on the Queen's speech. It may be not of much importance at this time, in an international point of view, to correct what seems to be an error on the part of Mr. Gladstone, when in his discussion with Mr. Horsmian he is reported as saying that the expression of regret by Great Britain con- tained in the Treaty of Washington " was not in the nature of a condi- tion precedent." The facts, I think, will scarce sustain Mr. Gladstone's denial, and, without a desire to provoke any discussion, it may be well to place on the archives of your legation some facts in connection with this question. The appointment of the Joint High Commission was i^receded by in- formal negotiations between Sir John Eose and myself. The first inter- view between us took place on the 9th January, 1871, when Sir John introduced the subject by saying " he had been requested by the British Government, informally and unofficiallj'," &c., "to ascertain what could be done for settling the pending questions between the two Governments, and that he was authorized to say that if it would be acceptable to the Government of the United States to refer all those subjects to a joint commission, framed something upon the model of the commission which made the treaty of Ghent, he could say that the British Government were prepared to send out such a commission on their part." At this interview I insisted, among other things, that Great Britain should, in some form, admit her liability, at least with respect to the Alabama, "and should couple the statement with an expression of regret for what had taken place to disturb the relations of the two countries ; that less than this the United States ought not to be, and would not be, satisfied with." Several interviews took place between the 9th and 24th Januarj'. Sir John Eose submitted a paper, which was copied and returned to him. A counter paper was prepared, and on the 24th January it was read to Sir John, but, for reasons stated to him, was not formally given to him ; it was, however, fully discussed, and he was furnished confidentially with a copy with the understanding that it was a crude paper, and did not represent my views, except so far as it agreed with the purport of the conversation then had. During the discussion with him on 24th January, I said, with regard to what the paper contained relating to the CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 587 admissiou of liability on the Alabama claims, that " on consultatiou, I had concluded that It was not best to make that specific statement, but instead thereof, to say that it would be essential that some important con- cessions should be made as to that class of claims, and some expression of regret at what had been doneP My language in the paper was : " It is necessary, and due to candor, to note that, unless Great Britain is willing to, and to express some kind words of regret for past occur- rences, it would be better to take no steps." Sir John gave me a copy of a telegram which he sent to Lord Gran- ville, bearing date January 24, in which occurs the following sentence : " The Government hope, also, that in the course of the Protocols some expressions of regret not inconsistent with the dignity of England, nor involving admission of national wrong, may be made." We had now progressed so far as to render the appointment of the Joint Commission a strong probability, and I desired official assurance that the British Gov- ernment icould make tlie expression of regret, without which we should have proceeded no further. I was then furnished a copy of a telegram from Earl Granville to Sir Edward Thornton, dated 25 January, 1871, saying : "We adhere to arbitration as to the point of international law on the Alabama question, but we should express regret at the fact of escape and depredations; we do not object to points properly selected for arbi- tration," &c., «&c. Having this assurance, the notes between Sir Edward Thornton and myself, preliminary to the appointment of the Commission, were passed. I am, &c., HAMILTON EISH, IS'o. 12G. General Schenclc to Mr. Fish. ■Nfo 353 1 Legation of the United States, " ■ ■■' London, March 6, 1873. Sir : The receipt of your No. 329, correcting the error of Mr. Glad- stone in his statement made in Parliament, that the expression of regret by Great Britain contained in the Treaty of Washington " was not in the nature of a condition precedent," has already been acknowledged. Ton say that, without a desire to provoke any discussion, it may be well to place in the archives of this legation some facts m connection with the question. And I do not understand that you deem it neces- sary to have me bring your dispatch on the subject, at present, to the notice of Her Majesty's Government. But I cannot forbear, before filing it awav, to express to you my great satisfaction that you have thus made authentic record of the facts on this point which preceded the negotiation of the Treaty. ^ . n Although not needed as confirmatory evidence, I venture to set down also my testimony on the subject. ,,- • ^ j. n <- Being at Washington, holding my appointment as Minister to Great Britain! but instructed by the President not to proceed to my post, but to remain and await the issue of the unofficial preliminary negotiations between you and Sir John Kose, because in case of agreement between 588 TREATY OF WASHINGTON. the two Governments to create a Joint Commission I was to be nom- inated one of the Commissioners on the part of the United States, I had the honor to be confidentially informed and consulted during the preparatory steps. I well remember that, from the beginning, you re- quired ofBcial assurance that the British Government would make ex- pression of regret for what had taken place in regard to the Alabama and other cruisers, declining to pass the preliminary notes with Sir Edward Thornton until this, among other things, was distinctly under stood. I am, &c., ROBT. C. SCHENCK. THE AMERICAN COMMISSIONERS AKD THE STATEMENT OP SIR STAFFORD NORTHCOTE, AT EXETER, IN KEI,ATION TO AN ALLEGED PEOMISE OF EXCLUSION OF THE INDIRECT CLAIMS OF THE UNITED STATES. TABLE OF CONTENTS. Page. No. ]. A passage from a speech of Sir Stafford Northcote, at Exeter, May 17, 1872, as published in the Pall Mall Gazette of May 18 593 2. Extract from the London Times of May 20, 1872, giving a report of the speech of Sir Stafford Northcote, at Exeter 593 3. Extract from an instruction of Mr. Fish to General Schenck, June 3, 1872 596 4. Copy of a letter of Mr. Fish addressed to each of the American Com- missioners 597 5. Letter of Judge Hoar, in answer to Mr. Fish's letter of June 3 598 6. Letter of Judge Nelson, in answer to Mr. Fish's letter of June 3 598 7. Letter of General Schenck, in answer to Mr. Fish's letter of June 3 599 8. Letter of Judge Williams, in answer to Mr. Fish's letter of June 3 600 9. Extract from the 36th Protocol of the Conferences of the Joint High Commission 601 10. Extract from a speech of the Marquis of Ripou, in the House of Lords, June 4, 1872, taken from the London Times of June 5, 1872 603 11. Letter of Sir Stafford Northcote to Earl Derby, June 5, 1872, read in the House of Lords June 6, taken from the report of the proceedings in the House of Lords, in the London Times of June 7 603 SIR STAFFORD NORTHCOTE'S DECLARATION. Ko. 1. A passage from a speech of Sir Stafford Northcoie, delivered on the 11th day of May, 1872, before the Exeter Chamber of Commerce, as published in the Pall Mall Gazette of May 18. " Two questions have been raised : one a personal question, as to what was the understanding between the Commissioners at the time the Treaty was negotiated; and, second, a general one as to the claims for con- sequential damages, or indirect claims. With regard to the personal question I will only say this — that we, the Commissioners, were distinctly responsible for having represented to the Government that we under- stood a promise to be given that these claims were not to be put for- ward by the United States. But if we are to maintain that position, we of course must be brought into painful relations, and perhaps painful questions, between ourselves and our American colleagues upon that Commission. No. 2. Mxtract from the London Times of May 20, 1872, giving a report of the speech of Sir Stafford Northcote at Exeter. SIR STAPFOED NOETHCOTE ON THE ALABAMA NEGOTIATIONS. We gave a brief telegraphic summary in the Times of Saturday of a speech delivered by Sir Stafford Northcote at Exeter. The right honorable gentleman spoke on several topics of interest, the chief of which was the question of the Alabama claims. We subjoin a fuller report of this portion of his speech. "I need not tell you," he said, " that this has been a year of great anxiety and of great trouble to us all connected with the questions raised under that Washington Treaty. And perhaps you will forgive my saying that to myself per- sonally the time we have been going through has been of very con- siderable anxiety, [hear, hear ;] not the less so because until within the last day or two I have felt myself in a position, and we who were the Commissioners last year have felt ourselves in a position in which it was our duty to hold our tongues. And though holding one's tongue is often very agreeable and very right, there are occasions on which it 38 A— n 594 TREATY' OP WASHINGTON. imposes and involves considerable sacrifice. But I think the country has generally appreciated the motives which have led to our silence. [Hear, hear.] We have felt that it was far hotter that we should sub- mit even to misrepresentation, or at all events to suspicion, which, we think, we could have cleared away if we could speak, than that we should say anything which could by any possibility mar the aettlemen t to which we are anxiously looking. [Hear, hear.] But the matter has now, this week, passed into a stage which places us in a somewhat different posi- tion. It does not, indeed, absolve us from the necessity of great caution in speaking of anything of a personal character; but it does place us in a position in which we may speak with freedom in reference to the great international interests concerned. Why I say our position per- sonally has been one of great delicacy and embarrassment is this: Two questions have been raised, one the personal question as to what was the understanding between the Commissioners at all events, and perhaps between the two Governments, at the time the Treaty was con- cluded ; the other, as to the general merits of the question which has been jaised with regard to what are called consequential damages, or the indirect claims. Now with regard to tiie personal question I will only say this — that we, the Commissioners, were distinctly responsible for having represented to the Government that we understood a promise to he given that these claims were not to lie put forward, and icere not to he submitted to arbi- traMon. That being so, we are, of course, brought into painful relations with,^ and painful questions arise bettceen ourselves and our American colleagues upon that Commission. It would have been most unjustifiable if, while the matter was under discussion, w'e had allowed any desire to make out our own case in this matter to interfere with a great international settlement going on. Whether the time will ever come for sx)eakiug fully upon the matter, I do not know, and I comparatively little care. What I am anx- ious for is that a reasonable arrangement should be come to which shall secure to both countries — and I will go as far as to say to the world at large — the advantages which we promised oui'selves in the conclusion of that Treaty. Now, while the question was one merely between the two Govern- ments it was very difficult to treat it without entering on that personal ques- tion, but we now see it has passed beyond the two Governments. An ar- rangement has been provisionally come to, I think we may say, between the two Governments, which is now awaiting its sanction by the Senate of the United States, and which, if accepted by them, must come before the Parliament and the people of this country, with a view to its ratifi- cation by us also, and I therefore speak with some litle freedom, because I feel that I can do so without raising the other class of question to which I refer. Nothing can be more satisfactory, I think, than the atti- tude which the people — I speak of the great public of both countries — have taken since the difficulty has arisen. Tliere was very great satisfaction in America, and I believe that on the whole I may say there was great satisfaction in- England also, when this Treaty was concluded last year. At all events, both countries believed that a settlementof the troublesome question had been arrived at ; that princi- ples were agreed uiron that were likely to be of very great importance for the future. Suddenly, and most unexpectedly to the people of this country, and, as I am perfectly convinced, equally unexpectedly to the people of the United States, a difficulty was raised which, seemed likely to overthrow the whole of the settlement. Nothing, I think, can have been more honorable to the public of both countries than the maimer in wliich, in the face of that great disappointment, they have behaved. SIE STAFFOED NOETHCOTE's DECLARATION. 5&5 There has been no disposition to irritate, there has been no disposition to embarrass the question; on the contrary, there has been an anxious desire shown on both sides to endeavor, if possible, to undo this knot and to arrive at a satisfactory conclusion. And though I do not wish to take credit to the late Commission for what may not belong to them, still one cannot help thinking that the manner in which the negotiation was conducted ou the part of our Government, and the manner in which, it was conducted on the other side, has had something to do in bringing about a better feeling between the two countries than previously existed. I firmly believe that the liatural irritation which pervaded a large pro- portion of the United States immediately after the terrible civil war through which they had passed was greatly allayed by the proceedings, of last year, and even if, which I trust may not be the case, those arrangements should unhappily fall through, I believe that the disposi- tion which has been shown toward a friendly settlement will not be without its fruits. But with regard to the prospects of a settlement, I wish only to say this — that I have great confidence that the spirit which has auimiited both peoples will animate the authorities also. [Hear, hear.J The Treaty of last year was arrived at under circumstances of . great difficulty, arising from the peculiar relation of the United States Senate to the Government; and those difliculties were enhanced by the fact that the Treaty embraced several distinct matters, and also by the consid- eration that the Senate had, on former occasions, rejected a Treaty for the settlementof theAlabama claims. All this made the negotiation extremely difficult and delicate. I am bound to say the spirit in which those diffi- culties were dealt with by the people, by the Government, and by the Senate of the United States was a spirit very encouraging, as if they were disposed to prefer great international considerations to the smaller ^ and more personal considerations to which I have referred. And they dealt with this question in a broad and statesmanlike manner, which, I trust, augurs well for the future settlement of this question.. It must be felt by us all that it is of the highest importance to the interests, not only of commerce, but of peace and tranquillity throughout the world, that these questions which have been raised should receive a satisfac- tory solution; that minor questions, such as national delicacy jind national pride, even — although I am the last who would wish to see national honor in the least degree tainted or weakened— should not be allowed altogether to put out of our sight those very great, broad, inter- national questions which are concerned in a settlement of this kind. And my firm belief is, whether we arrive at a settlement now, or whether this matter should be postponed, and it should be for the future to take it up again under happier auspices, that we have now arrived at a stage at which both countries are prepared to give proper weight to those great questions to which I have referred, and in which no petty consid- erations will be allowed'to interfere with the settlement. [Hear, hear,] I do not speak — you would not expect me to speak — of the particular arrangement now proposed; but I do believe, if the matter is treated by the Senate in the same spirit as they dealt with our negotiations last year, we shall, before long, see such a settlement of it as will secure to the world those fruits which we had so earnestly hoped and so confi- dently believed we had secured by our negotiations of last year.'' [Ap- plause.] 596 TREATY OF WASHINGTON. No. 3. Extract from an instruction of Mr. Fish, to General Schenck, June 3, 1872. Ko. 216.] Dbpaetment of State, Washington, June 3, 1872. gj-jj- ******* The communicatioDS which the British High pommissioners may have made to their Government, either pending the negotiation or since, can scarcely be urged with seriousness upon this Government for acceptance in the construction of the Treaty. One of those gentlemen is reported as saying, recently, " that we, the (British) Commissioners, were distinctly responsible for having represented to the Government that we (they) understood a promise to be given that these cjaims were not to be put forward, and were not to be submitted to arbitration." He does not say by whom, on what occasion, or in what manner, such promise was made. He involves all his colleagues in the representa- tion made to their Government, that such promise had been made. But this seeking " aliunde,^' outside of the Treaty and of the Protocol^ to establish a meaning or to explain its terms, has had the effect, which the honorable baronet who made the declaration anticipated, to raise a " personal question," and 1 cannot allow this reference made by Lord Granville to the information furnished to Her Majesty's Government by Her High Commissioners to pass without alluding to the representa- tion which Sir Stafford Northcote (one of those Commissioners) says that the Commissioners are responsible for having made to their Gov- ernment. In justice to myself and my colleagues on the American side of the Commission, I must take this occasion (the first that has presented itself since I have seen the speech of Sir Stafford Northcote) to say that no such promise as he states that the British Commissioners represented to their Government, as having been understood by them to be made by the American Commissioners, was in fact ever made. The official com- munications between the American and the British Commissioners (as you are aware) were all made by or to me as the first named of the American Commissioners. I never made and never heard of any such promise, or of anything resembling a promise on the subject referred to. None was ever made by me, formally or informally, officially or unofficially.; and I feel entire confidence in making the assertion that none of my colleagues ever made any promise or any declaration or statement approaching to a promise on the subject. What may have been the understanding of Sir Stafford Northcote, or of his colleagues, T cannot undertake to say; but that the American Commissioners gave him qr them any grounds to understand that such a promise was given as he says they represented to their Government as having been made, I am bound most respect- fully but most emphatically to deny. I cannot conceive from what he has imagined it, as the only direct allusion to the three classes of claims (called the " indirect claims") was that made on the part of the Ameri- can Commissioners on the 8th day of March, and js set forth in the 36th Protocol in the words in which it was made. The British Government has, in the correspondence which has recently taken place, endeavored to construe the withholding of an estimate of those " indirect claims " in connection with a proposition on behalf of this Government, which was declined by the British Commis- sioners, into their waiver. I have already discussed that question, and SIR STAFFORD NOETHCOTE'S DECLARATION. 597 shall not here again enter upon its refatation. The Protocols and the statement approved by the Joint Commission furnish the substantial part of what passed on that occasion. I am at a loss to conceive what representation, outside of the statement made in the 36th Protocol, Sir Stafford Northcote can have made to his Government. He refers to some " personal question," something which, until the time of ' his address, he and his colleagues had been under official restraint from dis- cussing, but the Protocols and the statement to which I have referred had been before the public, both in Great Britain and in the United States, for nearly a year before his declaration. It is only within a day or two that the journals containing his address have reached me. I have this day addressed a letter to yourself and to each of our colleagues on the Commission, calling attention to Sir Stafford's statement, and in due time may make public the correspondence. * # ***** I am, sir, your obedient servant, HAMILTON FISH. General Eobbkt C. Schenck, <&g., do., &c. No. 4. Copj/ of letter of Mr. Fish addressed to each of the American Gommission- ' ers on the Joint High Commission. Department op State, Washington, June 3, 1872. My Dear Judge : I beg to ask your attention to the inclosed extract of an address made by Sir Stafford Northcote to the Exeter Chamber of Commerce, containing an extraordinary charge that a " promise " had been given to the British Commissioners that what are called the " in- direct" claims could not be brought forward in the arbitration at Geneva under the Treaty of Washington. ■ Individually, I never heard of any such promise ; as one of the Ameri- can Commissioners, I never made any promise, nor suspected anything of the kind. I have no recollection of any question of the kind being raised, offtcially or unofficially. -„ . . , ^ What may have been the "understanding" of the British Commis- sioners is not a question on which I propose to enter; it is enough that they, as gentlemen, say that they had a certain understanding. Sir Edward Thornton tells me that he, in common with his colleagues, un- derstood that the " indirect claims " were waived ; he further says that his understanding on that point was derived entirely from the presen- tation made of our complaints and claims on the 8th of March, as set forth in the Protocol, and he disclaims any knowledge or idea of any " promise," or of anything subsequently said on the subject. This is his personal and unofficial statement to me ; probably he might feel a delicacy to bear any public testimony on the question. The charge of Sir Stafford Northcote does not state specifically by whom the promise was made ; but as the official communication and in- tercourse of the British Commissioners was necessarily confined to the 598 TREATY OP "WASHIlSrGTON. American Commissioners, the imputation of ill-faith, which the charge implies, primarily attaches to the American Commissioners. I venture, therefore, to bring it to your notice, and shall be pleased to hear from you any statement of your recollection on the subject, or any suggestion on the matter, I am, my dear judge, very sincerely yours, HAMILTON FISH. Hon. Samuel Kelson, Gooperstown, New York. NoTB. — A similar letter was addressed to General Schenok, Judge Hoar, and Judge Williams, the other American Commissioners. The inolosure mentioned in the letter ■was the extract from the speech of Sir Stafford Northcote, taken froln the Pall Mall Gazette— (No. 1, above.) Ko. 5. Letter of Judge Hoar in answer to Mr. FisWs letter of June 3. CoNCOED, June 7, 1872. My Dear Sir : I received last evening your letter of the 3d instant, calling my attention to an extract from a speech of Sir Stafford North- cote before the Exeter Chamber of Commerce, which you inclose. He says that the British Commissioners represented to their G-overnment that they understood a promise to be given that these claims (for conse- quential damages) were not to be put forward by the United States. I cannot, of course, undertake to say what any gentleman " under- - stood ;" nor does it appear by whom, or in what manner, or on what occasion Sir Stafford "understood" that the promise was given. I can only say that I never made any such promise, either individu- ally or in conjunction with others ; that no such promise was ever made in my hearing or with my knowledge ; that I never thought or suspected that any such promise existed, or was understood by any one. On. the contrary, I always thought and expected that those claims, though incapable from their nature of computation, and from their magnitude incapable of compensation, were to be submitted to the Tribunal of Arbitration, and urged as a reason why a gross sum should be awarded, which should be an ample and liberal compensation for our losses by captures and burnings, without going into petty details. Very respectfully and sincerely, vours, E. E. HOAK. Hon. Hamilton Fish. No. 6. Letter of Judge Nelson in answer to Mr. Fisli's letter of June 3. Coopbrstown, June 8, 1872. My Dear Sir : Tou call my attention to an " extract" from the speech of Sir Stafford Northcote before the Exeter Chamber of Commerce, ia which he states that the British Commissioners understood a promise SIR STAFFORD NORTHCOTE's DECLARATION. 599 was given by the American Commissioners in the course of the negotia- tion ot; th« Washington Treaty that consequential damages or indirect claims would not be put forth'by the United States under that Treaty. The " extract" had attracted my attention at the time it first appeared, but 1 was inclined to regard it as the expression of his understanding, rather than the assertion of a fact. My very great respect for Sir Stafford, arising from our intercourse during the negotiations, inclined me to this conclusion. My recollection is distinct that no such promise was in fact made; and, further, that the only meeting of the Commissioners at which indirect injury or losses were mentioned was that of the 8th of March, the facts in respect to which are truly set forth in the Protocol. I have watched the issue of the difficulties that have arisea in the execution of the Treaty with the greatest interest and anxiety, and was very much relieved at what yesterday appeared to be a solution satis- factory to both parties, and which I see is to-day confirmed. Very truly, yours, S. NBLSO^iJ". Hon. HAjaiLTON Fish, Secretary of State. lHo. 7. Letter of General Schenck in answer to Mr. Fish's letter of June 3. Legation op the United States, London, June 20, 1872. My Dbar Mr. Fish : I have your letter of the 3d instant, calling my attention to the statement made by Sir Stafford Korthcote in a speech at 13xeter last mouth. He took occasion then and there to declare that lie and the other British Commissioners, in the negotiations which resultey either of them, indivi