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of the same month, Perpall & Co. sold her for the same amount to Thomas Stead, and he, on the 10th of April, obtained for her a register as a British ship.1 Previous to her sale she was condemned by a board of survey, Perpall, the ostensible purchaser, being one of the board.3

THE TALLAHASSEE.

The Tallahassee.

It will be remembered by the Arbitrators that, when presenting for their consideration the facts connected with the claim of the United States for acts committed by the Shenandoah, we had occasion to call their attention to a letter written by the insurgent Secretary of the Navy to a Mr. Charles Green, bearing date as early as the 1st of July, 1861, in which, referring to the purchase of vessels to be used as transports, and the shipment of arms, &c., from England for the use of the insurgents, it was said: "It is probable that, being a British subject, you might secure the shipment under British colors."4 Less than fifty days after the date of that letter, Mr. Adams, in addressing Earl Russell upon the subject of the "transport Bermuda, and the information he had obtained as the ground for an application for a prompt and effective investigation of the truth of the allegations whilst there is time," called his lordship's attention to the fact that "she is stated to carry English colors."5 From that time until the end of the rebellion, the fact that the blockade-running, and the transportation of articles contraband of war, for the use of the insurgents, was carried on, almost exclusively, under the protection of the English flag, became very frequently the subject of direct complaint by Mr. Adams to Earl Russell.

The correspondence upon this subject will be found collected in volume I of the American Appendix, pages 719 to 785, and it shows conclusively that the insurgent Government was in the constant practice of procuring a British registry, and of using the British flag, for all or nearly all transports. We also claim that it shows that this practice was tolerated by Great Britain.

As late as the 20th of January, 1865, the Lieutenant-Governor of Bermuda, in communicating with the home government, took occasion to say: "I would further state that the Chameleon's register is Confederate States. Hence there is another legal question to which I should be glad to have an answer, viz, is a merchant-ship, sailing under the flag of, and registered by, an unrecognized nation, to be received in our ports on the same terms as a trader under a recognized flag? I find that this is not the first instance of a ship trading hither with a confederate register, though most of the blockade-runners are British."6

On the 31st of March, 1864, the Consul of the United States at London informed Mr. Seward that "on the Thames their activity in forwarding all enterprises in aid of the Confederacy is kept up with nearly as much vigor as on the Clyde. Another double screw, called the Atlanta, similar in most respects to those which have preceded her, has her sails bent, coals and supplies in, appears quite ready to leave."

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Again, on the 1st of April, he says: "The double screw is called the Atlanta. Her sails are bent, and she appears quite ready for sea. I consider the Edith and her the finest ships of the whole batch of double screws." 1

On the 8th of April, it was reported to the Consul that "this double screw [the Atlanta] left the docks on Sunday last, adjusted compasses same day, and sailed on the 4th of April from Greenhithe, and arrived at Falmouth on the next day. She cleared for Bermuda in ballast, (coal.)"2

On the 20th she arrived in Bermuda, making the passage in eleven days. The Consul at Bermuda says, in his report to Mr. Seward: "This vessel is undoubtedly faster than any heretofore here. She is to be under the command of Captain Horner, formerly of the Flora, and recently in the Index. He is an Englishman by birth."3

Again, on the 30th of May, he says: "The following steamers [six in all] have left here to run the blockade, probably for Wilmington. * May 24, Atlanta, Horner, master."

*

On the 6th of August the Atlanta, with her name changed to the Tallahassee, left Wilmington, North Carolina, armed as a vessel of war, and ran the blockade of that port. On the 18th of the same month she arrived at Halifax, Nova Scotia, for coal, having, in the mean time, destroyed a large number of vessels. She remained in port about forty hours, and, having supplied herself with coal for her return, sailed on the 19th, and again reached Wilmington through the blockade on the 26th.5

The United States, having had reason to believe she had been armed at Bermuda, complained to the Government of Great Britain. The matter was referred to the authorities at Bermuda, and on the 14th of November, 1864, the Lieutenant-Governor reported:

The Atlanta was reported here from Wilmington, with cargo, on the 6th of last July, and she was cleared on the 11th of July for Nassau, with a cargo of seven hundred cases of preserved meats, and fifty casks of bacon; she left under British certificate of registry, and carrying British merchandise. All the requisites to a regular clearance were fulfilled. If she went to Wilmington, as is probably the case, notwithstanding her having cleared for Nassau, she would have reached that port about the 15th or 16th of July, between which dates and the 1st of August she probably took in her armament. Everything, except direct testimony, is against the belief that the Tallahassee was armed at Bermuda."

The Tallahassee remained in commission until the 15th of December, 1864,7 and cruised for a short time off the coast, in the early part of November, under the name of the Olustee. On this cruise she made a few captures, and returned to Wilmington."

After her armament was removed she was loaded with cotton, and, on the 27th of December, under the name of the Chameleon, left Wilmington, for Bermuda. At that port she was loaded with a return cargo for Wilmington, but, being unable to run the blockade, proceeded to Nassau. From there she attempted to get into Charleston, but, being prevented in this, returned to Bermuda; and from there went to Liverpool, consigned to Frazer, Trenholm & Co.

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THE CHICKAMAUGA.

This vessel was formerly the blockade-runner Edith. The consul of

the United States at London, in writing Mr. Seward on the The Chickamauga. 11th of March, 1864, said: "The steamer Edith, the last

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double screw completed, left on Wednesday last for Bermuda. The Edith makes the ninth double-screw steamer which has been built for the rebel service in this port." She was employed as a blockade-runner, and as such was once or twice at Bermuda. Having been armed at Wilmington she ran through the blockade on the 28th of October, 1864, as a cruiser, and reached Bermuda in that capacity on the 6th of November. Here she was supplied with coal from the bark Pleiades, and, after remaining nine days, got under way, and returned to Wilmington, where she arrived on the 19th of November. Her armament was then taken out of her, and she was reduced to her original condition as a transport.

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1 Am. App., vol. vi, p. 723.

XI.-CONSIDERATION OF THE DUTIES OF GREAT BRITAIN, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, IN REGARD TO THE OFFENDING VESSELS, AND ITS FAILURE TO FULFILL THEM, AS TO EACH OF SAID VESSELS.

We are now prepared for a definite application of the law and the facts, under which the determination of the Tribunal is to be made, to the question of the duties of Great Britain, in the premises of the Arbitration, and its performance thereof or failure therein.

The ample discussions of pertinent questions and principles of public and municipal law, to be found in the Cases and Counter Cases of the two Governments, and subjected to comment in an earlier part of this Argument, it is not our purpose here to repeat or renew. We shall better observe the requirements of the Argument at this stage of it, by a brief statement of the propositions which should assist and control the judgment of the Arbitrators in deciding the main issue of fact on which their award is to turn, that is to say, the inculpation or the exculpation of Great Britain in the matter of the offending vessels.

Rules of the treaty mperative.

PROPOSITIONS OF LAW.

MEASURE OF INTERNATIONAL DUTY.

I. The Three Rules of the Treaty furnish the imperative law as to the obligations of Great Britain in respect of each of the vessels which is brought under review. The moment that it appears that a vessel is, in itself, within the description of the first article of the Treaty, as being one of "the several vessels which have given rise to the claims generically known as the Alabama Claims," it becomes a subject to which the three rules are applicable.

first rule.

II. This primary inquiry of fact, which simply determines that the Application of the jurisdiction of the Tribunal embraces the vessel, is followed, necessarily, by the further inquiry of fact, whether or no the vessel, in its circumstances, falls within the predicament of either the first clause or the second clause of the first rule. If it does, the Tribunal has further to consider whether Great Britain has used, in regard to said vessel, the "due diligence" which is insisted upon by that rule, and the failure in which inculpates Great Britain, and exposes it to the condemnation of responsibility and reparation therefor to the United States. III. Whatever may be the scope and efficacy of the second Rule, and of the third Rule, in future or in general, for the purposes of second and third the present Arbitration, the subjects to which either of them can be applied, in reference to the issue of the inculpation or exculpation of Great Britain, must be embraced within the limitation of the first article of the Treaty, and so, connected with some or one of "the several vessels which have given rise to the claims generically known as the 'Alabama Claims."" But in regard to any such vessel, the

Application of the

Rules.

general injunctions of these two Rules furnish, in their violation, a ground for the inculpation of Great Britain, and its condemnation to responsibility and reparation therefor to the United States.

IV. It is not at all material or valuable, in its bearing upon the deliberations or award of the Tribunal, to inquire whether the These Rules consti obligations of duty laid down in the Three Rules are com- tute the law of this mensurate with the obligations imposed by the "principles

controversy.

of International Law which were in force at the time when the claims mentioned in Article I (of the Treaty] arose." These Rules constitute the LAW of this controversy and of this Tribunal in its jurisdiction of it, by force of the twofold declaration, (1) that, "in deciding the matters submitted to the Arbitrators, they shall be governed" by them, and (2) that "in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these Rules.” V. The true force of the subordinate provision that, besides the Rules, "such principles of International Law, not inconsistent therewith, as the Arbitrators shall determine to have been applicable to the case," shall govern them in their decision, is, necessarily, to introduce from the general doctrines of International Law whatever may corroborate or increase the vigor of the Rules, and their scope and efficiency, but to admit nothing, from such general doctrines, in reduction or disparagement of the Rules.

Nothing admissible which diminishes their force.

VI. An assent to these indisputable propositions disposes of a very considerable part of the more remote argument of the Case and Counter Case of Her Majesty's Government.

The obligation of

serve these rules was an international one.

(a) The duties in respect of which the conduct of Great Britain, in fulfilling or failing to fulfill the same, is to be judged by the Tribunal, are, by the terms of the Treaty, authoritatively Great Britain to obassigned as duties of Great Britain towards the United States, of international obligation. Not only does the Treaty declare that Great Britain was "bound" to the fulfillment of these duties, but it further declares that "the Arbitrators should assume that Her Majesty's Government had undertaken to act" in obedience to that obligation. All speculations, therefore, of a legal or practical character, presented in the Case or Counter Case, and turning upon the question of the duties here under judgment being duties of Great Britain toits own alws and its own subjects, and its accountability to the United States being only secondary and of comity, seem unprofitable to the present inquiry.

distribution of pow

meat.

(b) The efforts of the Case and Counter Case to ascribe to, or apportion among, the various departments of national authority, This obligation not legislative, judicial, and executive, principal or subordinate, affected by internal the true measure of obligation and responsibility, and of ers of British governfault 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 is in fault, wherever, in the functions of the state or in their exercise, the failure in duty arose. (c) So, too, the particular institutions or habits of the people of Great Britain, or the motives or policy of its Government in respect Nor by the instituof commercial freedom, unrestricted activity, maxims or tions or habits of the methods of judicial procedure, limitations of prerogative, and similar internal arrangements of people and Government, cease to have any efficacy in determining the judgment of this Tribunal upon the fulfillment of, or default in, international duty. Domestic liberty, however valuable to, and in, a state, is not a warrant for international

British people.

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