at places remote from and out of the control of Her Majesty's government, nor till they had passed into the possession and control of the Confederate government, through the latter's agents. The crews of all the four vessels, though composed partly of British subjects who had been induced by promises of reward to take service when at a distance from England, were actually enlisted on the high seas or elsewhere out of the jurisdiction of Her Majesty's government; the crew of the Florida was chiefly enlisted in a port of the Confederate States, which she entered and lay in before engaging in any operation of war.

In conclusion (Part X.) the British Case conMeaning of "Due tended that there was no ground on which Diligence." the United States could maintain a claim for pecuniary indemnity. It had been seen that Her Majesty's government, not content with performing its recognized international obligations, had on more than one occasion overstepped them, and had on two occasions voluntarily incurred a large expenditure in order to prevent vessels armed or built for war in Great Britain from passing into belligerent hands. On the other hand, a charge of injurious negligence on the part of a sovereign government, in the exercise of any of the powers of sovereignty, must be sustained on strong and solid grounds. The general assumption that such powers were exercised with good faith and reasonable care ought to subsist until it had been displaced by proof to the contrary. It was not enough to show that a government had acted on an opinion from which an arbitrator could be induced to dissent; or that a judgment pronounced by a court of competent jurisdiction, and acted upon by the Executive, was tainted with error; or that there had been some defect of judgment or penetration, or somewhat less than the utmost possible promptitude and celerity of action; or that there had been some delay or omission occasioned by mere accident; or that an act had been done which it was the duty of the government to prevent. On the contrary, it was necessary to show that there had been "a failure to use, for the prevention of an act which the government was bound to endeavor to prevent, such care as governments ordinarily employ in their domestic concerns, and may reasonably be expected to exert in matters of international interest and obligation." These considerations, it was said, applied with especial force to nations whose institutions

were free, and in which the government was bound to obey and could not dispense with the law. Moreover, there had been on the part of the United States an extraordinary remissness in employing their naval forces in the capture of the vessels of whose acts they complained; and it was not reasonable "that a belligerent state, alleging itself to be aggrieved by some imputed negligence of a neutral government, should on that account claim indemnity from the neutral for losses in the course of warlike operations which it had not actively and diligently exerted itself to prevent and arrest."

Counter Cases.

After the filing of the Cases a controversy arose which, for a period of several months, rendered the continuance of the arbitration doubtful. The details of this controversy, which related to the "indirect claims" submitted by the United States, are given hereafter. The contracting parties, however, in due time filed their Counter Cases; the Government of Great Britain doing so with the reservation that its action was not to prejudice its position that the indirect claims, which were not discussed in its Counter Case, were not within the jurisdiction of the tribunal.

American Counter

Case.

The Counter Case of the United States, which was prepared by the agent and counsel of the United States at Paris, was very brief and added little to the Case in the way of argument, though it was accompanied with numerous documents. In regard to the assumption in the British Case that the claims of the United States were to be confined to those growing out of the acts of the Florida, the Alabama, the Georgia, and the Shenandoah, it stated that the claims growing out of the acts of the other vessels mentioned in the American Case formed part of the claims generically known as the Alabama claims, and were enumerated in certain volumes which were printed by order of the Senate under the title of "Claims of the United States against Great Britain." These volumes were not only submitted with the Case of the United States, but were, it was believed, in the possession of the foreign office in London before Her Majesty's high commissioners received their instructions; and they were on the table of the joint high commission during the negotiations which preceded the conclusion of the treaty.

Status of Confederate Agents.

As to the averment in several places in the British Case that the acts complained of were committed by American citizens, the Counter Case of the United States asked the tribunal "to take note that the 'American citizens' referred to were criminals in the eye of American law at the very time when they were elevated to the rank of recognized belligerents against the United States by the act of Her Majesty's government." would therefore seem impossible "to impute to the United States any consequences of responsibility for the conduct of the persons thus described as 'American citizens.""

Effect of Commissions.

It

Moreover, said the Counter Case, the British Case seemed to concede that a belligerent who had wronged a neutral by violating its sovereignty and by forcing it to take part, indirectly, in a war, might, nevertheless, by some subsequent act (such as commissioning, outside the jurisdiction of the neutral, a vessel of war unlawfully constructed within its jurisdiction), deprive the neutral of the right to take cognizance of the original offense. The United States suggested that such a right could not be lost by the mere act of the offending belligerent. The concession that it could be so lost appeared to involve a claim that vessels of rebels recognized as belligerents possessed an exemption from national jurisdiction, which should be accorded, if at all, only to vessels of recognized sovereign powers, to which political representations could be made in case of violations of neutral sovereignty, and to ignore undoubted prerogatives of the Crown to exclude armed vessels from the national ports.

As to the operation of the words "due dili"Due Diligence." gence," the British Case, said the Counter Case of the United States, set up as a measure of care a standard which fluctuated with each succeeding government in the circuit of the globe, viz, "such care as governments ordinarily employ in their domestic concerns." The argument of the British Case required a neutral to establish, as a foundation for a claim for compensation, an absence of care "nearly equivalent to willful negligence." The United States did not conceive that the law of nations tolerated the proposition that

1

1 See discussion of the subject of negligence in Bernard's Neutrality of Great Britain during the American Civil War, 385.

belligerents were required to submit without redress to the injuries resulting from neutral negligence till it reached the extremity suggested. The British Case seemed also to narrow the international duties of a government to the exercise of the restraining powers conferred upon it by municipal law, and to overlook the obligation of the neutral to amend its laws when they were insufficient.

As to the reference made in the British Case Acts of Partiality. to "armed ships fitted out and sent to sea from ports in the Confederate States," during and after May 1861, the Counter Case of the United States said that there was no insurgent vessel preying on the commerce of the United States when the Florida or the Alabama escaped from Liverpool. As to the course of other maritime powers, it was pointed out that such powers recognized the insurgents as lawful belligerents only after Great Britain, the principal maritime power, had elevated them to that rank; and it was denied that, having regard to the great disparity of numbers between the vessels of the United States and those of the insurgents, the United States enjoyed, as the British Case claimed, to an equal extent with the insurgents the hospitalities of the British ports, or that, without regard to that disparity, those hospitalities were extended with an impartial neutrality to each.

Prohibitory Legislation.

The Counter Case of the United States challenged the statement of the British Case that the acts of which the United States complained belonged to a class which had not commonly been made the object of prohibitory legislation. Such acts appeared, it was maintained, upon evidence before the tribunal, among which was the report of the royal commission on the subject of neutrality, to have been widely made the subject of positive legislation, nor was there any country except Great Britain, so far as the United States were advised, in which it had been assumed that proceedings under the municipal or local laws were the measure of neutral obligations toward other governments. And it was "emphatically" denied that the prohibitory laws of the United States had, as was asserted in the British Case, "been infringed by acts much more flagrant than any of those now charged against Great Britain." With reference to the statement in the British Case that the foreignenlistment act of 1819 was more "stringent, rigorous, and

comprehensive" than the neutrality laws of the United States, the Counter Case of the United States made the following comparison:

"1. Enlistments of British subjects only are made unlawful by the British act; the American act, on the contrary, makes all enlistments within the neutral jurisdiction unlawful, except naval enlistments of subjects of the enlisting belligerent made on the deck of a vessel of the belligerent while within the neutral waters.

"2. By executive and judicial construction, the words 'equip,' fitted out,' and 'furnish' have received a much broader meaning in America than in Great Britain, as the United States have explained in their Case.

"3. The tenth and eleventh sections of the American act, commonly known as the bonding clauses, are admitted not to be in the British act. And it is also admitted that these clauses are intended to be preventive, not punitive. 1

1

"4. The eighth section of the United States act is also omitted in the English act. This section, the practical operation of which is explained in the case of the United States, is regarded by them as by far the most efficient part of the act for the prevention of violations of neutrality."

Action on American
Complaint.

Nor did the United States understand, said the Counter Case, that it was true that "allegations that vessels were being prepared for

The "bonding clauses are now incorporated in the following sections of the Revised Statutes of the United States:

"Sec. 5289. [Act of 1818, sec. 10.] The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament, conditioned that the vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.

"Sec. 5290. [Act of 1818, sec. 11.] The several collectors of the customs shall detain any vessel manifestly built for warlike purposes, and about to depart the United States, the cargo of which principally consists of arias and munitions of war, when the number of men shipped on board, or other circumstances, render it probable that such vessel is intended to be employed by the owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, until the decision of the President is had thereon, or until the owner gives such bond and security as is required of the owners of armed vessels by the preceding section."