The captures, it is said, were made by citizens of the United States. Of what avail here is that fact? Does the British Government intend to be understood as maintaining that all violations of neutrality on behalf of Rebels are taken out of the grasp of the law of nations?. Is that to be held as the deliberate thought of Great Britain, the mistress of so many millions of discontented inhabitants of conquered States?

Alleged condone.

Next, it is said that the United States have condoned the ment by the United Wrongs done to them by their Rebels, and "that they have been re-admitted to their former full participation in the rights and privileges of the Federal Constitution."

States.

How does Great Britain know that, what right has she to know it. in a matter of Treaty obligations between the two Governments? If the consideration is of any force whatever, it strikes at the question whether Great Britain is responsible to the United States in case she did, or omitted to do, any of the actions forbidden or commanded by the Rules of the Treaty of Washington.

The Treaty does not provide by way of exception that if such acts done or committed in violation of neutral duty are done or omitted on behalf of Rebels, they shall involve no responsibility to the legitimate sovereign, or that such responsibility shall be measured by the more or less severity with which that sovereign shall see fit to treat his Rebels. On the contrary, the Rules are absolute in their terms, and adopted with specific reference to the questions of neutrality violated to the advantage of Rebels and the disadvantage of their sovereign.;

Great Britain can set up no such defense. It involves considerations which she ought to have reflected on when she hastened to raise the Confederates into the status of international belligerents. In so doing she gave to them the means of doing injury to their sovereign, it is true, but for which that sovereign could and did take redress against them, when he saw fit, by exercise of the rights of war as well as the rights of sovereignty.

But Great Britain, by the course of policy she adopted, chose a condition, in which, whatever wrongs she or her subjects might suffer at the hands of the Confederates, she had no possible recourse, either against them or their sovereign; but in which she herself was responsible to that sovereign for whatever she might do in aid of such rebels, in violation of the law of nations or of Treaty.

Great Britain placed herself in that condition of her own free election, and against the will of the United States. She must take the consequences.

Her acts of actual or constructive complicity with the Confederates gave to the United States the same right of war against her as in similar circumstances she asserted against the Netherlands.

The arbitration

We, the United States, holding those rights of war, have relinquished them to accept instead the arbitration of this Trisubstitutes damages bunal. And the Arbitration substitutes correlative legal ation by war. damages in the place of the right of war.

in the place of repar

This proposition is unequivocally admitted in the Counter Case as follows:

in the British Counter Case.

Her Majesty's Government readily admits the general principle that, where an injury has been done by one nation to another, a claim for some appropriate Reply to arguments redress arises, and that it is on all accounts desirable that this right should be satisfied by amicable reparation, instead of being enforced by war. All civil society reposes on this principle, or on a principle analogous to this; the society of nations, as well as that which unites the individual members of each particular commonwealth.1

'Page 130.

The principle being thus admitted, no casuistry can serve to prevent its application to the present claims of the United States.

That, as the Counter Case suggests, the instruments of the injury done were the cruisers and their officers and crews, is immaterial to the question. Responsibility for the acts of those cruisers, by the very terms of the Treaty, is imposed on Great Britain, if she be found in fault according to the agreed Rules.

If it were otherwise, then no responsibility could ever devolve on any Government for breaches of neutrality produced by its neglect; for the Government is not in its own person the actual cruiser which sinks and burns; it is, however, the constructive captor by the spirit and the letter of the Treaty.

The British Counter Case argues that Great Britain ought not to be held responsible for all the acts of the cruisers during the entire voyage of each, because they enjoyed hospitality in ports of other countries. Unfortunately for the argument, Great Britain never did anything to stop the cruisers, as she did in the affair of Terceira; she continued to allow them to obtain supplies in her ports to the last, without which they could not have kept the seas; and although with knowledge of the positive guilt of the cruisers, by reason of their violation of her laws, she persisted in treating them as legitimate cruisers, when she might and should have arrested them whenever they entered into her jurisdiction, or have forbidden them to re-enter and practically outlawed them, as Brazil did, to punish the lesser act of abusing the hospitality of the Empire. But the neglect of duty on the part of Great Britain continued as to most, if not all, the cruisers of the Confederates to the very end.

The Counter Case argues that losses and specific captures, actually suffered by the United States, are not to be indemnified, because the liability of Great Britain disappears "among the multitude of causes, positive or negative, direct or indirect, distant or obscure, which combine to give success to one belligerent or the other." If this argument were adduced to the question of the responsibility of Great Britain to the United States for the prolongation of the Rebellion, we could comprehend its meaning without admitting its application or force. But as applied to actual captures, and the loss thereby produced, the argument seems to be destitute of reason. On such premises no belligerent could be held to restitution of a wrongful capture, and no neutral could ever be held responsible toward either belligerent; for a "multitude" of secondary facts always enter into every discussion of responsibility for wrong, and especially for wrongs in time of war. The common sense of mankind oversteps all such immaterial incidents, and goes direct to the prime author of the wrong; the Government which wrongfully did, or wrongfully permitted, the act impugned, the expedition from her ports of the "floating fortress," as the Counter Case properly calls the wrongdoing instrument of the guilty Government.

Claims like the present, says the Counter Case, have rarely been made, and, as the British Government thinks, never conceded or recognized.

It might suffice to reply that no such case, on so large a scale, has ever occurred, except in the controversy between Great Britain and France in 1776, and then Great Britain declared war. But the precise question arose and was duly adjusted between the United States and Spain. And the relations of Governments do not depend on mere precedent, but still more on right.

The Counter Case deprecatingly doubts whether "the greatness of the loss is to be regarded as furnishing the just measure of reparation without regard to the venial character of the default."

We deny that there is here any actual question of default of "venial character." The defaults charged, and, as we think, the defaults proved, are grave, serious, capital. And we deny that there is any possible question of the "venial character of the defaults," or that the loss can be measured by any such consideration. Punishment by penal laws may be graduated in this way, according to the greater or less degree of guilt; but indemnity for wrong cannot be: if you destroy my ship, my house, or my horse, by culpable carelessness, it is no answer to say that you might have been more careless-nay, that you might have acted with deliberate malice.

If there be responsible wrong, whether it be the greatest possible Indemnity should wrong, or a degree less than the greatest possible, still the follow injury. indemnity follows as a legitimate and just consequence. Such, indeed, is the tenor of the Treaty, which attaches responsibility to mere want of "due diligence," and does not require that Great Britain should have been guilty of the utmost conceivable degree of willful negligence which could by possibility be committed by any Government.

gross.

(f) The Case of the United States desires the Tribunal to award a Award of a sum in sum in gross in reparation of the losses complained of; and the Counsel request this, assuming the Tribunal shall be fully satisfied that the said losses are properly proved indetail, and that the sum total thereof, as claimed, is due by Great Britain.

In that contingency the Counsel assume that interest will be awarded by the Tribunal as an element of the damage. We conceive this to be conformable to public law, and to be required by paramount considerations of equity and justice.

It should include interest.

Numerous examples of this occur in matters of international valuation and indemnity.

Canada.

Thus, on a recent occasion, in the disposition by Sir Edward ThornThe case of the ton, British Minister at Washington, as umpire, of a claim on the part of the United States against Brazil, the umpire decided that the claimants were entitled to interest by the same right which entitled them to reparation. And the interest allowed in this case was $45,077, nearly half of the entire award, ($100,740.)

So in the case of an award of damages by the Emperor of Russia in Award under the a claim of the United States against Great Britain, under Treaty of Ghent. the Treaty of Ghent, additional damages were awarded in the nature of damages from the time when the indemnity was due.2 In that case Mr. Wirt holds that, according to the usage of nations, interest is due on international transactions.

Award under the Jay treaty.

In like manner, Sir John Nicholl, British Commissioner in the adjustment of damage between the United States and Great Britain, under the Jay Treaty, awards interest, and says: To re-imburse to claimants the original cost of their property, and all the expenses they have actually incurred, together with interest on the whole amount, would, I think, be a just and adequate compensation. This, I believe, is the measure of compensation usually made by all belligerent nations for losses, costs, and damages occasioned by illegal captures.3

Contingent refer. ence to assessors,

(9) If the Arbitrators are not satisfied with the proofs presented by the United States, and entertain doubt as to the sums to be awarded in each case of private loss occasioned by Confederate cruisers, as to which the responsibility of the British Government Indemnity case of ship Canada, United States Documents, December 15, 1870, p.

153.

2 Opinion of Attorney-General of the United States, vol ii, p. 20.

3 Ibid., p. 31. See also Story, Conflicts of Laws, § 307.

attaches according to the Rules of the Treaty, then the Counsel of the United States respectfully submit that it may be the duty of the Tribunal, after finding the fact of the fault of Great Britain in the premises, to refer the assessment of the damages to the Assessors provided for by Article X of the Treaty, with such instructions as to the extent of the liability as the Tribunal shall see fit to give to such Assessors.

We cannot admit that Great Britain shall appoint ex-parte Assessors to control the statements and proofs of the United States. That she in effect undertakes to do in the arbitrary estimates of officials or private persons contained in her Counter Case, as in the nature of proofs contradictory of the official statements and private affidavits or other proofs presented by the United States. If these formal statements on the part of the United States do not suffice, and estimates are needed, the Counsel of the United States respectfully insist that such assessments must be made by the official Assessors of the Treaty.

(h) In the Appendix to this Argument will be found special discussion of the merits of these claims of private persons with reference to the criticism of the British Counter-Case thereon,

Claims of private persons.

to which we respectfully solicit the attention of the Tribunal. (See Appendix to this Argument, Note D.)

We come now to the class of claims, some private, some general, which in recent discussions between the two Governments are objected to by Great Britain as being "indirect.”

These are:

The indirect claims.

(1) The enhanced rates of insurance in the United States, occasioned by the Confederate cruisers in question, involving great pecuniary loss to the citizens of the United States.

Enhanced rates of insurance.

Certain it is, this injury was actual, and a loss "growing out of the acts" of the Confederate cruisers by necessary relation of cause and effect, and it followed immediately on the appearance of those cruisers. (2.) Transfer of the maritime commerce of the United States to Great Britain.

This was a national loss "growing out of the acts" of the cruisers, and having them for its distinct and sole cause.

Transfer of United States commerce to British flag.

It was a loss to the United States constituting gain to Great Britain. We do not say that she was culpably negligent of the obligations of neutrality in order that she might thus gain thereby, but we do say that the loss to us, and the gain to her, were the necessary and immediate effect of her negligence in that respect.

(3.) The prolongation of the war of Rebellion in the Prolongation of the United States.

war.

The admit ed gravity of the injury thus suffered by the United States, and the supposed enormous magnitude of the sum requisite to indemnify the United States in the premises, have caused this head of claim, as stated in the American Case, to be conspicuous in the recent discussions between the two Governments, and to become the subject of special commentary on the part of eminent publicists and public men in Europe.

It is the claim which presents itself to the minds of all as the "indirect claims" of the United States.

Whatever we may further have to say regarding the distinction of indirect and direct, in the consideration either of the general or of the particular question of damages, we desire to have regarded as applicable mainly to this claim.

In stating our views of the general subject of damages we frankly recognized the existence of the distinction in law between damages

proximate or direct and damages remote or indirect, admitting the force and the validity of the distinction.

Whether too re

tion to be determin

But we took care to state at the same time that the distinction is altogether uncertain, not to say, in many cases, shadowy; mote for considera that the dividing line can no more be drawn in the abstract ed by the tribunal. than the line between the contiguous colors of the spectrum; and that in private controversies the attempt to make the discrimination generally results in a question of fact for the determination of the competent tribunal.

The idea is well expressed by Mr. Pradier Fodéré, as follows:

dier Fodere.

Mais l'élévation des primes d'assurance amenée par les déprédations certaines et répétées de corsaires, mais la prolongation de la guerre due aux succès Views of M. Pra de ces derniers, pourraient être, sans trop forcer l'appréciation, considérées comme des suites prochaines, et, sinon nécessaires et uniques, du moins naturelles, de la faute du neutre. Il y a là, du reste, une série de considérations à peser, à étudier. La règle absolue, c'est qu'on ne peut équitablement et raisonnablement imposer la responsabilité des dommages indirects. Mais étant donnés tels dommages causés et éprouvés, quels d'entre eux sont directs, quels sont indirects? On ne peut pas le dire d'avance: c'est une question à examiner, en descendant dans les détails et en discutant les causes de chaque dommage.'

What M. Pradier Fodéré says in this respect is fully justified by all the special discussions of the question in the jurisprudence of Great Britain and the United States, as well as of other countries of Europe and America. The well-considered treatise of Mr. Mayne, and the still ampler and more complete treatise of Mr. Sedgwick, contain abundant proof on this point.

The Counter Case of the British Government exhibits an apt illustration of this point, in arguing that even the claims for property actually destroyed by the Alabama are indirect claims, and therefore to be rejected by the Tribunal. It is not worth while to add to what we have already said on that argument. We suppose it assumes that negligence is the cause and escape the direct effect, so that the captures are the indirect effect; which is equivalent to saying that he who by malice or gross negligence discharges a loaded gun into a crowd is not responsible for the deaths or wounds he inflicts, because the injury done is the effect of the action of the ball, which is a secondary cause, and not of the act of negligence or malice which did but apply a match to the gun. The Counsel of the United States would not need to have recourse to General considera any such subtleties to show that the acts of the Confederate cruisers inflicted an injury on the United States in contributing to the prolongation of the war, and that such injury was a direct injury of Government to Government. Nor would it be any answer to say that this injury was but a contributing fact among other and even greater causes of the damage.

tions.

Nor would it suffice to reply that the exact amount of the damage is difficult to fix. When a traveler is injured by reason of want of due diligence on the part of the managers of a railroad, it is no defense to say that it is difficult to fix the true value of his arm or his leg, or the money compensation of a long fit of sickness. That is a problem, like others of the same nature, which finds its solution every day in the ordinary courts of justice of all countries.

One nation invades another, and inflicts losses by acts of war on land. If they choose to make peace on the condition of the invader indemnifying the losses of the invaded, the sum which ought to be paid is debatable; but certainly it can be determined. So if two co-operating nations invade another, the sum of injury done by one of them as dis

Pradier Fodéré, La question de l'Alabama, p. 37.