The responsibility

these failures in due

until the end of the

cruisers.

the United States in these maritime hostilities, for the bearof Great Britain for ing they have upon the failure of Great Britain to fulfill its diligence continued obligations under the Rules of the Treaty in refusing to career of the arrest the offending vessels in its ports, or to exclude them therefrom, after their original outfit and escape. We confidently submit that the Tribunal will find in this ground of inculpation, (1) a substantive failure of "due diligence," in the sense of the Treaty, and (2) a maintenance of continued responsibility for "all claims growing out of the acts of" these vessels during their career to its end.

It will remain, then, for the Tribunal to consider these various propositions of law and of fact, under which the actual conduct of Her Majesty's Government is now to be judged, and to apply them, so far as they shall approve themselves to the enlightened judgment of the arbitrators, to the exact analysis of the evidence touching each offending vessel, in a previous division of this argument set forth. We gladly recognize the great advantages which the contending parties will derive from the practical and comprehensive estimate of the decisive elements. of the controversy, which the experience and sagacity that belong to conversance with public affairs enable the arbitrators to bring to the determination of this controversy.

No evidence of the

gence submitted by Great Britain,

We confidently submit that the British Government has not laid before the Tribunal any evidence tending to show the exercise exercise of due dili- of "due diligence," in respect of any one of the offending vessels, to prevent the occurrence of the violation of the international obligation imposed by the Three Rules of the Treaty. Indeed, we may safely go further and insist that, while the matters were in fieri, Her Majesty's Government did not at any time apply its thoughts or its purposes to the direct prevention of such violation. It was wholly engaged in considering what prosecutions for penalties and forfeitures under the Foreign Enlistment Act it could hopefully institute. For the reasons we have pointed out, this does not tend to make out "due diligence" to prevent the violation of the international obligation assigned by the Treaty.

A phrase in the first clause of the first Rule speaks of a neutral Government's duty being applicable to "any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace." What attention was ever paid by Her Majesty's Government, in its deliberations, its doubts, and its decisions, about arresting a vessel, to this broad criterion? We look in vain for the agitation of any such question in either of its elements, (1). of the subject of belief, or (2) the grounds required to support it. Instead, the whole topic of debate, of advice, and of determination before Her Majesty's Government was (1) of belief that a forfeiture of the vessel could be obtained under the Foreign Enlistment Act, and (2) the support required for such belief was to be sworn voluntary evidence in hand sufficient to exclude appreciable risk of failure before a jury and consequent damages. Whenever the United States shall have submitted by Treaty to this test of the international obligations of Great Britain, it will be time enough to adjudge the cause by it.

We respectfully submit that there is nothing in the evidence, or argument even, which proves or asserts that the British Government was either without reasonable ground to believe, or did not believe, that the Florida or Alabama at Liverpool, or the Florida on her first visit to Nassau, was not intended to cruise against the United States. The only deliberation and doubt were, as to the prosecution under the foreignenlistment act offering the means of judicially punishing, and so, incidentally, interrupting, the projected enterprise.

So, too, we confidently submit to the Tribunal that it does not appear on evidence or in argument before the arbitrators that Her Majesty's Government professes or claims to have used "due diligence" within the premises of the Three Rules of the Treaty, unless due diligence to enforce forfeitures and punishments under the Foreign Enlistment Act is equivalent to due diligence to prevent the violation of the international obligation to the United States which is exacted by the Treaty. We have already considered this subject in some detail, but we apprehend that the wide distinction between these two propositions is too plain to require any further emphasis than its statement. All the laborious argument and voluminous evidence to prove due diligence in prosecutions under the Foreign Enlistment Act are but an "imbelle telum" against our challenge of due diligence as exacted by the treaty. An illustration of the difference between these two objects and measures of due diligence is presented upon the occurrences of the Florida's first visit to Nassau. Here we have a legal trial of the question whether the forfeiture of the Florida could be obtained under the foreign-enlistment. act in the Vice Admiralty Court. This issue was held to exclude all evidence of what had made her a vessel of war before she left Liverpool, and to include only the question of warlike equipment in Nassau as cognizable by the local court. The Vice Admiralty Court held that the evidence did not prove enough within this issue to forfeit the vessel, and judgment was given against the Crown. So much for this disposition of the question of private right involved in this trial in Admiralty.

But Sir Alexander Milne, and Commander Hickley, and Commander McKillop, and other naval officers, concurred in thinking that their duty, and the duty of Her Majesty's Government, required the prevention, by strong hand, of the departure of the Florida. Accordingly, Commander Hickley seized her, and Sir Alexander Milne found a warrant for such action in "the very grave suspicion of being intended for employ ment as a Southern cruiser; the fact of the vessel being fitted in every respect like one of Her Majesty's ships, and especially adapted for war; her armament ready to be put on board, with a crew of fifty men, and officers of the Confederate States ready to command her."1

This action, we submit, was such as the facts of the case required to meet the due diligence of the Three Rules of the Treaty. But the maintenance of the Foreign Enlistment Act was suffered to measure and control the international duty of the Government, and the only question left was, whether Commander Hickley should be protected from "blame and consequent responsibility" for his seizure.2

In the light of the propositions which we have insisted should govern the examination, we find it impossible to discover, in the proofs exhibiting the conduct of the British Government in respect of the offending vessels, any evidence tending to show the use of due diligence pointed at the fulfillment of the international duty exacted by the Treaty. Indeed, the fact that the Florida and Alabama escaped, when, as Lord Granville justly observed in the debate on the Treaty of Washington, "nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores," is conclusive evidence in the absence of countervailing proof that the due diligence of the Treaty was not exhibited to prevent the escape. In vain shall we look for evidence of inevitable accident, of imposition, or of misfortune, supervening to thwart or surprise Her Majesty's Government and accomplish the offense, notwithstanding the employment of due diligence to prevent it.

1 Brit. App., vol. i, p. 30.

Ibid., p. 30.

It has been more or less argued, or intimated, that in the escape of the Alabama from Liverpool, some element of accident or casus mixed itself with the transaction, and is to affect the judgment of the Tribunal in inculpating or exculpating Great Britain for her escape.

We will briefly examine this question of supposed accident or casus. The Alabama was the subject of attention to Her Majesty's Government, more actively and immediately, from the 23d day of June. The Law Officers on the 30th of that month state that it seemed "evident she must be intended for some warlike purpose," and refer to a statement of Lairds' foreman that the vessel was "intended as a privateer for the service of the Government of the Southern States," and advise that steps be taken by Her Majesty's Government "to ascertain the truth." On the same day the surveyor at Liverpool reports her warlike build, &c., and states the current report that she is built for a foreign Government, and that this is not denied by the Lairds, with whom he has communicated on the subject, but that they decline to answer questions as to her destination.

On the 9th of July, the Collector was informed that the Lairds had said the vessel was for the Spanish Government, but that the Spanish Minister gave a positive assurance that this was not true. On the 21st of July the Collector sent to London the affidavits in the case, with information that he had been requested to seize the vessel, and asked for instructions by telegraph how he was to act, "as the ship appeared to be ready for sea, and may leave any hour she pleases."

Upon the 23d of July, the "extreme urgency" of the case was represented to the Government, and that "the gun-boat now lies in the Birkenhead docks ready for sea in all respects, with a crew of fifty men on board." On the 26th, the decision of the Government was urged, particularly as every day afforded opportunities for the vessel in question to take her departure." On the 28th, "she was moved from the dock into the river; the men had their clothes on board, and received orders to hold themselves ready at any moment." She remained in the river "until 11 or 12 o'clock of the 29th, and was seen from the shore by thousands of persons. The customs officers were on board when she left, and only left her when the tug left." As early as July 4 Her Majesty's Government had promised Mr. Adams that "the officers at Liverpool would keep a strict watch upon the vessel." After she left, Her Majesty's government gave orders to seize and detain her.

Here was a vessel under inquiry as to probable seizure for forfeiture, carrying the consequence of intercepting her illegal enterprise. She was ready to sail "at any hour," six days before she did sail; the Government made no inquiry, demanded no pledge, took no precautions, placed no impediments affecting her entire freedom. The Government was fully informed of the situation, and was entreated to take action. The Alabama had her enterprise before her, and the Government had its duty to defeat it. These objects and interests were repugnant. The Alabama, being wholly unimpeded by the Government, sailed before the arrest was ordered. The Government, knowing all about the situation, did not attempt to interfere with the vessel's movements.

We are not here arguing as to diligence or duty, only as to accident or casus. It is said that some fortuitous circumstance retarded the decision of the Government. But the Government were all the while aware that the Alabama could sail when she pleased, and that she was under the most powerful motives to anticipate the adverse action of the Government by sailing. Sail she did; and this may be put to the account of

casus, when pursuing an expected course, under adequate motives, and at the necessary time, is properly described as accidental.

Equally frivolous seems the only instance that is pretended of anything like imposition having been practised on Her Majesty's Government in the course of these transactions. The so-called imposition consists in second-hand statements, that the Florida-which was the counterpart of one of Her Majesty's gun-boats, had no storage, and was by no possibility "ancipitis usus "-was not for the Confederate war service, but belonged to a firm of Thomas Brothers, of Palermo, in Sicily. Now, as this firm of British merchants established in Sicily had no recognition of sovereignty, or even of belligerency, it was very plain that this ownership of a war ship was as much a cover as John Lairds & Sons', or William C. Miller & Co.'s, would have been. Accordingly, inquiries were addressed for the purpose of learning whether a Government, also suggested as a possible owner of this war vessel, had really any interest in her, and they were answered in the negative.

The worthlessness, as hearsay, of this evidence is as apparent as its falsehood in respect to the fact, and we only recur to the matter as being the single instance of imposition which is claimed to have occurred in the long history of "the several vessels which have given rise to the claims generically known as the 'Alabama Claims.""

In the deliberations of the Arbitrators, which are to guide them to their actual award, they will have occasion to consider the application of the second and third Rules of the Treaty, no less than of the first Rule, to all the situations and propositions of fact and of law that arise for decision. It is not necessary to distinguish in detail the special cases to which one or the other Rule may be exclusively or pre-eminently applicable.

The only further consideration which we need to present, under this division of the argument, has relation to the vessels What vessels unwhich properly come within the jurisdiction of the Tri- der the jurisdiction bunal.

of the Tribunal.

Observations on this subject in the Case and Counter Case of the United States have been intended to show that the whole list of vessels, for injuries from whose acts claims are presented to the Tribunal, is included within the jurisdiction conferred in and by the first article of the Treaty. We wish simply to add a reference to a passage in the protocol to the Treaty, of May 4, 1871.

A statement is there made which seems to possess much authority in ascertaining the intent of the Treaty on this point. It is found on page 10 of the Case, and reads as follows:

At the conference held on the 8th of March, the American Commissioners stated that 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 her Colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers, &c.

It is respectfully submitted that this description of the protocol, beyond all controversy, includes the whole list of vessels as insisted upon in the Case and Counter Case.

XIII.-NATURE AND AMOUNT OF DAMAGES CLAIMED BY THE UNITED STATES.

I. PREFATORY CONSIDERATIONS.

1. The Counsel of the United States assume that, in the foregoing observations, and the proofs which they have adduced and expounded, they have established the responsibility of the British Government in the premises.

General conclusions.

The legal character of this responsibility is defined by the Treaty of Washington. It is matter of express contract between the two Govern

ments.

The contracting parties, in the first place, agree to certain "Rules," by which the conduct of the British Government in the premises is to be judged. These "Rules" constitute the principles, upon which it is to be conventionally assumed that the British Government acts, as to the questions here at issue. These "Rules" profess to define the general obligations of a neutral Government. They expressly set forth to what such a government is bound. They are understood by the tenor of the treaty to define expressly what the British Government was bound, in the occurrences debated, to do or not to do with respect to the United States.

2. The Counsel of the United States have applied these Rules to the acts of commission or omission of the British Government, with conclusion as follows:

(a) The British Government did not use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of certain vessels, which it had reasonable grounds to believe were intended to cruise or carry on war against the United States.

(b) The British Government did not use like diligence to prevent the departure from its jurisdiction of certain vessels to carry on war against the United States, such vessels having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

(c) The British Government did permit or suffer the belligerent Rebels of the United States to make use of the ports or waters of Great Bitain as the base of military operations against the United States, or for the purpose of renewal or augmentation of military supplies or arms, or the recruitment of men for naval warfare.

(d) The British Government did not use due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the stipulated rules, (Article VI.)

(e) Finally, the British Government has failed to fulfill certain duties, recognized by the principles of international law, not inconsistent with the foregoing "Rules."

Great Britain

of the cruisers.

re

3. We think we have shown that the British Government is responsible under these Rules for all, or at any rate for certain, of sponsible for the acts the cruisers in question. If the Arbitrators come to the same conclusion, then they are to award a sum in gross for the claims referred to them, to be paid by Great Britain to the United States; or, after deciding the failure of the British Government to fulfill its duties as aforesaid, they may remit the question of amount to asses