cruising or carrying on war" were in all cases followed by seizure of the vessels, when sufficient prima facie evidence of the illegal purpose was furnished. "They understand," said the Counter Case, "exactly the contrary to have been the case; that until the opinion of the law officers of the Crown, given on the 29th day of July 1862 (the day of the escape of the Alabama), all branches of Her Majesty's government held that it was necessary, not only to establish a preparation for cruising or carrying on war, but also an actual arming of the offending cruiser in a British port, in order to justify seizure, and that this prevailing opinion was afterward sustained in effect by the courts of England in the Alexandra case, which is still the unreversed judicial construction of the act of 1819."

In conclusion, the American Counter Case Concluding Consider- presented the following general considerations:

ations.

"1. Both parties contemplate that the United States will endeavor to establish in these proceedings some tangible connection of cause and effect between the injuries for which they ask compensation and the acts committed by the several vessels,' which the treaty contemplates are to be shown to be the fount of those injuries.

"2. The tribunal of arbitration being a judicial body, invested by the parties with the functions necessary for determining the issues between them, and being now seized of the substance of the matters in dispute, will hold itself bound by such reasonable and established rules of law regarding the relations of cause and effect as it may assume that the parties had in view when they entered into their engagement to make this reference.

"3. Neither party contemplates that the tribunal will establish or be governed by rules in this respect which will either on the one hand tend to release neutrals from their duty to observe a strict neutrality, or, on the other hand, will make a course of honest neutrality unduly burdensome."

The Counter Case of Great Britain, a comBritish Counter Case. prehensive document of about the same length as the British Case, was, as has heretofore been stated, filed without prejudice to the position assumed by Her Majesty's government in the controversy then pending in relation to the "indirect claims." While declaring that Her Majesty's government was entitled to assume that the claims which it would have to meet would be found to relate exclusively to the Florida, the Alabama, the Georgia, and the Shenandoah, the British Counter Case called attention to the fact that none of

the other vessels on account of which the United States had in its Case advanced claims was alleged to have been in any manner armed, fitted out, or equipped for war within British territory. Three of them were said 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 commander of the Alabama. As to the Sumter and the Nashville, it was alleged only that they received hospitalities in British ports. The Tallahassee and the Chickamauga, though origi nally built in England, were employed in carrying cargoes to and from ports of the Confederate States, and were converted into cruisers by the Confederate government. As to the Retribution, it was merely alleged that her commander contrived on two occasions to carry a prize captured by him on the high seas into the territorial waters of a British island, and there to dispose of or destroy the cargo. Besides these nine vessels there had, said the British Counter Case, been introduced into the list of claims losses for captures by two vessels named the Boston and the Sallie, which were 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 of the United States was equally silent. Her Majesty's government presumed that this had been done through inadvertence.

Limits of Neutral
Duty.

After certain observations upon some of the evidence, and upon some of the opinions of publicists, introduced by the United States, as possibly being affected by partisanship or bias, the British Counter Case proceeded to consider the propositions laid down in the Case of the United States on the subject of neutral duty. The British Government could not, it was said, admit without very material qualifications the proposition that a neutral was obliged to enforce its municipal laws, proclamations, and executive orders, though the belligerents might, if they thought fit to do so, ask for any of these things; nor could it admit as generally true the proposition that a belligerent power had a right to call upon a neutral state to make changes in its domestic legislation. Great Britain adhered to the three rules of the treaty, and was ready to discuss their construction; but it could not admit the assumption "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."

The law of nations was "to be gathered, not from British statutes or ordinances, but from the general consent of nations, evidenced by their practice;" and those statutes and ordinances could be appealed to only for the purpose of proving that the 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." The British Government, said the Counter Case, agreed that where appreciable injury had been directly caused by the violation of a clearly ascertained national duty, suitable reparation should be made to the injured party, but not otherwise. Nor could Great Britain assent to the doctrine that the default of a neutral power was not limited to the acts done or omitted to be done on its part, within its own territory, but was 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. And in determining the question of default or culpable negligence, it should be kept in view that there would not be found "in text-books of acknowledged authority anterior to the civil war," or "in the general practice of maritime nations," "any proof or acknowledgment of a duty incumbent on neutral governments to prevent their citizens or subjects from supplying belligerents with ships adapted for warlike use," or "any distinction drawn in this respect between the sale and delivery of a vessel built to order and that of a vessel not built to order."

Hospitalities to Belligerents.

With respect to the admission of belligerent ships into neutral ports, the British Counter Case maintained that it was within the absolute discretion of the neutral government either to refuse admission or to grant it, and to "extend to vessels so admitted all the ordinary hospitalities of a friendly port;" "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 their supplies of arms or munitions of war, within the neutral territory." No restric tions whatever, it was contended, were required to be placed on purchases of provisions, coal, or any supplies other than arms or munitions of war. So, also, belligerent ships might be permitted to repair and refit, or to bring in prizes, or even to sell them, though there could be no condemnation of them in

the neutral port. These things, it was said, did not amount to making of the port a "base of naval operations," which denoted the use of neutral territory as a station or point of departure from which to watch for and attack the enemy.

Duty to Detain Belligerent Vessel.

In regard to the duty claimed by the United States to rest upon the neutral, under the second rule of the treaty, not only not to extend hospitalities to, but to seize and detain, whenever it might enter the jurisdiction, a belligerent vessel which had there been specially adapted, in whole or in part, to warlike use, the British Counter Case contended that while such a vessel, having become liable to seizure, could not relieve itself by moving from one place to another within the national jurisdiction, as from Liverpool to Queenstown or Nassau, yet it could not be seized after it had outside of the jurisdiction duly entered the service of a belligerent. "The Alabama," said the Counter Case, "when she touched for the first time at a port of a British colony, had for more than six months been commissioned 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, had been received at the French island of Martinique, as she afterward was at Fernando de Noronha, Bahia, and Cherbourg. And, in matters relating to the war, it was the duty of Great Britain, as it was the duty of all other neutral powers, to treat the Alabama in exactly the same manner as, under corresponding circumstances, they would have treated a public ship armed and commissioned by a recognized sovereign state." If, while in neutral waters, a ship so commissioned committed a violation of neutrality, force might, said the Counter Case, undoubtedly be employed in any way which might be necessary "in order to prevent or arrest the unlawful act or to compel her departure. But redress ought not," it continued, "to be sought against the ship itself; 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."

Neutral Duties Historically Tested.

1

As illustrating the duties and practice of neutrality, and the difficulties and imperfections usually exhibited in its enforcement, the British Counter Case reviewed a number of precedents which had either been appealed to by the United States, or which

1

Citing Ortolan, Dip. de la Mer (4th ed.), II. 190.

were found in its history, as the case of the Swedish ships,1 violations of American neutrality in 1793 and 1794 and during the war carried on by Spain and Portugal against the SpanishAmerican colonies, and later violations of the same kind, including the Lopez expeditions against Cuba, the Walker expeditions against Mexico and Central America, the Fenian raids into Canada, and the various criminal enterprises from 1869 to 1871 in aid of the insurrection in Cuba. From these examples the following conclusions were deduced: 1. That the argument of the United States that a neutral government was bound to apply to the various duties which purported to be enumerated in the three rules, when pushed even beyond the natural meaning of the words, a diligence the most energetic, vigilant, and exact, found no support in the history or in the practice of the United States. 2. That the argument that compensation was due, as of right, for any loss sustained in war by a belligerent which might be traced to a relaxation of diligence in preventing violations of neutrality, whether sound or not, was not supported by any precedent. 3. That where compensation had been claimed in such cases it had been limited to values of ships and cargoes captured by vessels unlawfully fitted out and armed; and that the claim had never been admitted except when such prizes had been brought by the captors within the jurisdiction of the neutral power. 4. That there was no trace of an obligation on the part of a neutral government to seize and detain an armed ship entering its ports, commissioned as a public ship of war, which had received any equipment or any adaptation for war within its jurisdiction; that while the Government of the United States in 1793 directed that privateers which had violated its neutrality should not have any asylum in its ports, it acknowledged no obligation to do so, and that the exclusion seemed to have been "by no means steadily enforced." Nor could Her Majesty's government forbear to remark that the history of the subject was "from first to last a history of unlawful enterprises originated either in the United States or by citizens of the United States in other countries."

The complaints of the United States in reTraffic in Contra- gard to the traffic in munitions of war did not, band. said the British Counter Case, fall within the

scope of the arbitration. No power had asserted the right of

De Martens's Causes Célèbres, V. 229, ed. 1861.