In June, 1860, Walker made his last expedition from the United States, and was shot at Truxillo. (British Counter Case, pages 37-40. See also Appendix to American Counter Case, pages 515-518, 612-627, 632-643, 707–709.) It may be interesting to mention that a correspondence, respecting claims between the Republic of Nicaragua and the United States, has recently been published in the official Gazette of that Republic, in which the Government of Nicaragua desired that, in a proposed adjustment of claims by a Mixed Commission, the claims of Nicaragua for injuries and losses sustained by these "filibustering" expeditions should be taken into consideration. The Government, however, of the United States declined all responsibility, on the ground that they had fulfilled all that could be required of them, either by the laws of the United States or by international law, and declared these claims to be inadmissible. The British Counter Case gives an account of the open preparations for an attack on Canada continued during the years 1865–266. The first raid took place from Buffalo and Saint Alban's in June, 1866. The second raid was from Malone and Saint Alban's, in May, 1870. The third raid was on the Pembina frontier, in October, 1871. Expeditions proceeded from the United States, in aid of the Cuban insurgents, in the Grapeshot and Peritt, in May, 1869; and from New Orleans in the Cespedes, or Lilian, in October, 1869. (The latter was stopped at Nassau.) Another expedition, in the Hornet or Cuba, (the vessel having been previously libeled in the Admiralty Court and bonded in 1870,) landed in Cuba in January, 1871. (British Counter Case, page 45.) The foregoing narrative is necessarily brief and imperfect; but it shows, besides the systematic privateering practiced, by subjects of the United States, against Spain and Portugal in 1816-28, (when upward of fifty-four privateers are mentioned as having been armed and dispatched from American ports,) two expeditions against Cuba under Lopez; six expeditions under Walker; three Fenian raids; and three expeditions in aid of the Cuban insurgents. The latter, according to the reports in the American press, would appear to be still continued. IX.--General Conclusion: the failure to prevent does not always prove a want of "due diligence." 37. The general re many failures to pre without want of due causes for which Governments cannot The general result, to which we have been led as well by reason and principle as by experience, is this: that occasional (it may sult proves, that even be frequent) failures to prevent acts contrary to law, vent may happen, and injurious to a friendly State, may nevertheless be diligence, from entirely consistent with a serious intention and bona-fide endeavor, on the part of the Government whose subjects be held responsible. commit such acts within its jurisdiction, to prevent them, and with the use of due diligence for that purpose; that, without timely information and evidence of a legal kind, sufficient and proper to constitute a “reasonable ground of belief," no obligation to use any such diligence arises, and that the Government of a civilized nation cannot be held wanting in due diligence if, having made reasonable provision by law for the prevention of illegal acts of this nature on the part of its citizens, it proceeds to deal with all such cases in a legal course, according to its accustomed methods of civil administration. This is, in fact, the "diligence," and the only diligence which is, in such cases, generally "due” from an independent State to a foreign Government; and from this it follows that accidental and unintentional difficulties or delays, or even slips and errors, such as are liable to result, in the conduct of public affairs, from the nature of the subordinate instruments by which, and the circumstances under which, civil Government is necessarily carried on, and against which no human foresight can always absolutely provide, ought not in themselves to be regarded as instances or proofs of a want of "due diligence," where good faith and reasonable activity on the part of the Government itself has not been wanting. Least of all can the Government of a free country be held wanting in due diligence, on the ground of errors of judgment, into which a Judge of a Court of Law, in the exercise of a legal jurisdiction properly invoked, may have fallen (as when the Florida was acquitted at Nassau) in the decision of a particular case. "The United States agree with Her Majesty's Government when it says, as it does in its Counter Case, that it should not be, and they hope 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 dependence of the Crown, how to decide a particular case or question. No judge in Her Majesty's dominions should submit to be so instructed; no community, however small, should tolerate it; and no minister, however powerful, should ever think of attempting it." (Argument of the United States, p. 121.) This being so, if the Government had information and evidence which made it their duty to detain such a ship as the Florida, and to endeavor to prosecute her to condemnation, and if they actually did so, and offered for that purpose proper evidence, they used all the diligence which was due from them. Over the judgment, whether right or erroneous, they had no control; and for it, if erroneous, they have no responsibility.1 But the counsel of the United States say that "The efforts of the British Case and Counter Case to ascribe to, or apportion among, the various departments of national authority, legislative, judicial, and executive, principal or subordinate, the true measure of obligation and responsibility, and of fault or failure, in the premises, as among themselves, seem wholly valueless. If the sum of the obligations of Great Britain to the United States was not performed, the nation was in fault, wherever, in the functions of the State or their exercise, the failure in duty arose." (Argument, p. 147.) The question, whether "the sum of the obligations of Great Britain to the United States" was or was not performed, (which is the point at issue,) seems to be here assumed. A petitio principii cannot, of course, be an answer to arguments intended to show that the sum of those national obligations was, in fact, performed. The United States affirm that in the various cases in which they themselves failed to prevent, within their own territory, equipments and expeditions hostile to other States, the sum of their own national obligations was performed; and yet they seem to deny to the Government of Great Britain the benefit of the same equitable principles of judgment. X.-Of the burden of proof, according to the Treaty. They go further: they seek to invert the whole burden of proof in the present controversy: The foundation of the obligation of Great Britain to use "due diligence to prevent" certain acts and occurrences within its jurisdiction, as mentioned in the three Rules, is, that those acts and occurrences within its jurisdic 38. Attempt of the United States to change generally the the present contro onus » probandi in versy. 1 The judgment of acquittal, when once pronounced by the Court of Admiralty in favor of the vessel, was conclusive, as a judgment in rem, preventing the possibility of her being afterward again seized as forfeited for a breach of the British Foreign-Enlistment Act, except on the ground of some new violation of the law, subsequent to that judgment. This point of law was expressly determined by the Supreme Court of the United States in the case of Gelston vs. Hoyt, already mentioned. The effect of judgments in rem by courts of admiralty is every where recognized by international law. tion are offenses against international law, and, being injurious to the United States, furnished just occasion for resentment on their part, and for reparation and indemnity by Great Britain, unless these offensive acts and occurrences shall be affirmatively shown to have proceeded from conduct and causes for which the Government of Great Britain is not responsible. But by the law of nations the State is responsible for all offenses committed against international law arising within its jurisdiction, by which a foreign State suffers injury, unless the former can clear itself of responsibility by demonstrating its freedom from fault in the premises. (Page 154.) And again, at page 154: The nature of the presumptive relation which the State bears to the offenses and injuries imputed and proved necessarily throws upon it the burden of the exculpatory proof demanded; that is to say, the proof of due diligence on its part to prevent the offenses which, in fact and in spite of its efforts, have been committed within its jurisdiction, and have wrought the injuries complained of. 39. In so doing, In the face of the sixth article of the Treaty, by which Her Majesty expressly declines to assent to the three Rules as a statethey transgress the ment of principles of international law which were in force rules of the Treaty. when these claims arose, but agrees that the Arbitrators may apply these rules to the decision of the claims, upon the footing of an undertaking by Great Britain to act upon their principles-it is here assumed that all such acts or occurrences within British jurisdiction as are mentioned in the Treaty are to be dealt with by the Arbitrators as offenses against international law; notwithstanding the proofs, given in the British Counter Case and the annex (A) thereto, and referred to at the commencement of this paper, that international law never did require a neutral Government to prohibit and prevent the manufacture, sale, and dispatch of unarmed ships of war, by its citizens within its territory, for a belligerent. In the face of the three Rules themselves, which affirm the obligation of due diligence to prevent, only when there are "reasonable grounds to believe" that some prohibited act has been or is about to be done, the United States decline the burden of establishing, in each or any case, the existence of this preliminary and indispensable condition, reasonable ground for belief; and they ask that this should be taken for granted in every case until it is disproved. 40. The law of na To justify this disregard of the primary condition of the rules, they appeal to a supposed law of nations, which is said universally tions does not justify to throw the onus of demonstrating its own freedom from this attempt. "fault in the premises" upon every State whose citizens commit any offense against international law, injurious to a foreign State within its jurisdiction; which principle, as was shown in the early part of this paper, has never been extended to cases (like the present) when the acts in question have been done by individuals or by small numbers of citizens. The United States do not admit themselves to be responsible for all the equipments and hostile expeditions of their citi zens against foreign States which they have failed to prevent, under the propositions that "it is presumed that a Sovereign knows what his subjects openly and frequently commit;" that, "as to his power of hindering the evil, this likewise is also presumed unless the want of it be clearly proved." But, if those propositions would not be applicable against the United States, why are they to be applied against Great Britain, to cases much further removed in their nature and circumstances from the terms of the propositions? 41. The decision in It happens that there is a decision of weight, of which the United States long ago had the benefit in a former controversy the case of the Eliza with Great Britain, under circumstances not very dissimilar the in principle, which is directly opposed to this attempt ou their part now to alter the burden of proof. The United beth by the Commissioners under the Treaty of 1794 is against it. States come before the Arbitrators under an agreement of the Queen of Great Britain, by which Her Majesty authorizes the Arbitrators to assume that she had undertaken, when the present claims arose, to act upon the principles set forth in the three Rules, though not admitting them to have been then in force as rules of international law. In 1798, Great Britain came before the Commissioners of Claims under the Treaty of 1794, with an actual undertaking by the United States to use all the means in their power to restore all British prizes brought into ports of the United States, after a certain date, by any vessel illegally armed within their jurisdiction, and with an acknowledgment of their consequent obligation to make compensation for such, if any, of those prizes as they might not have used all the means in their power to restore. The undertaking of Great Britain, now to be assumed by the Arbitrators, is conditional upon the existence of "reasonable grounds for belief” of certain facts by the British Government in the case of each of the vessels for which Great Britain is sought to be made responsible. The undertaking of the United States, in 1794, was also dependent upon certain conditions of fact. What was the decision of the Commissioners in the case of the Elizabeth? (British Counter Case, pp. 29, 30, and British Appendix, vol. v, p. 322 :) "From this examination of the letter, which is given to us for a rule, (Mr. Jefferson to Mr. Hammond, 5th September, 1793,) it results that 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 the 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 on 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 United States had confessedly foreborne 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 circumstances above enumerated, but brought in after the 7th August, the President had determined that all the means in the power of the United States should be used for their restitution, and that compensation would be equally incumbent on the United States in such of these cases (if any such should at any future time occur) 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 effect 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. * * * * * * "No, the promise was conditional. We will restore in all those cases of complaint 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 favor, or under the circumstances in which the promise was intended to operate." XI.-Special questions remaining to be considered. considered. These are the arguments, upon the subject of the diligence generally due by Great Britain to the United States, with reference 42. Special questo the subjects to which the three Rules of the Treaty of tions remaining to be Washington relate, and the principles according to which that diligence is to be proved or disproved, which it has been desired by Her Britannic Majesty's Counsel to submit to the Arbitrators. There remain some other special questions, which require separate examina 1. Whether the diligence due from Great Britain, as to any vessel equipped contrary to the first Rule, extended to the pursuit of the vessel by a naval force after she had passed beyond British jurisdiction? 2. Whether the diligence, so due, extended to an obligation, on the re-entry of any such vessel into a British port, after she had been commissioned by the Confederate States as a public ship of war, to seize and detain her in such port? And, 3. Whether supplies of coal, furnished in British ports to Confederate cruisers, can be regarded as infractions of the second Rule of the Treaty, or as otherwise wrongful against the United States? XII.-There existed no duty to pursue ships beyond the limits of British jurisdiction. 43. As to the al suit The Terceira Upon the first of these three points, the sole argument of the United States appears to be derived from the precedent of the Terleged duty of pur- ceira expedition in 1829. It is a strange proposition, and expedition. one unsupported by any principle or authority in international law, that, because a Government, which conceived its neutrality laws to have been infringed upon a particular occasion, may have thought fit to visit that offense by extraordinary measures (really in the nature of war or reprisals) beyond its own territory, therefore it placed itself under an obligation to take similar measures upon subsequent occasions, if any such should occur of a like character. In point of fact, there is no similarity between the Terceira case, which (in the view taken of it by the British Government) was an expedition of embodied, though unarmed troops, proceeding in transports from Great Britain, against an express prohibition of the British Government, for the invasion of a friendly territory, and the departure of unarmed vessels, for the use of the Confederates, from British ports. In point of international law, the British Government was not only under no obligation to pursue the Terceira expedition, but Sir Robert Phillimore (whose authority is so much extolled in the Argument of the United States) distinctly condemns that proceeding. "The Government," he says, "were supported by a majority in both Houses of Parliament; but in the protest of the House of Lords, and in the resolutions of (i. e., moved in) the House of Commons, (which condemned the proceedings of the Government,) the true principles of international law are found." (Commentaries, vol. iii, p. 235.) The two remaining points are those on which the Arbitrators have consented to receive arguments, embracing other important questions, both of international law, and as to the proper interpretation of the rules of the Treaty of Washington, in addition to the question of the diligence (if any) due from Great Britain to the United States, in those respects. CHAPTER II.-ON THE SPECIAL QUESTION OF THE EFFECT OF THE COMMISSIONS OF THE CONFEDERATE SHIPS OF WAR, ON THEIR ENTRANCE INTO BRITISH PORTS. It is contended by the United States that these ships (or at least such of them as had been illegally equipped in British territory) struction of the 1st ought to have been seized and detained, when they came into British ports, by the British authorities. This argu 1. The true conrule of the Treaty. |