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cared for by the law of nations, a reasonable, a practical, and a permanent rule and measure of obligation, just in its judgment of the past, and wise and beneficent in its influence on the future. We concur in the final considerations of the British Counter Case on this subject of due diligence, in leaving "the Arbitrators to judge of the facts presented to them by the light of reason and justice, aided by that knowledge of the general powers and duties of administration which they possess as persons long conversant with public affairs."

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Brit. Counter Case, p. 125.

XII.—THE FAILURE OF GREAT BRITAIN TO FULFIL ITS DUTIES, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, CONSIDERED UPON THE FACTS.

CONSIDERATIONS OF GENERAL APPLICATION.

the contention is.

con

It is assumed in the British Case, and argued in addition in the Counter Case, that the only vessels which fall within the descrip- The vessels tion of the first Article of the Treaty as "the several vessels cerning whose acts which have given rise to the claims generically known as the "Alabama claims,"" are the Florida, Alabama, Georgia, and Shenandoah. As to these vessels there is no contention in this respect, and they and their history and career are included, indisputably, within the jurisdiction conferred upon the Tribunal by the Treaty of Washington. The Case of the United States sets forth a list of certain other vessels, which they understand to be embraced within the jurisdiction of the Tribunal, and the circumstances of whose dispatch and career bring them within the application of the Rules of the Treaty, and of the condemnation of Great Britain by the Tribunal for failure to fulfill the duties in this regard insisted upon by these Rules, and the principles of International Law not inconsistent therewith. Of these, three, viz, the Clarence, the Tacony, and the Archer, are described as tenders of the Florida; and one, the Tuscaloosa, as a tender of the Alabama. The others, the Sumter, the Nashville, the Retribution, the Tallahassee, and the Chickamauga, are independent vessels. In addition to the evidence furnished by the history of each of these vessels in the Case of the United States, the Counter Case presents special considerations to show that all these vessels fall within the description of the Treaty jurisdiction of the Tribunal.1

The specific facts connected with these several vessels have been made the subject of comment in previous pages of this Argument, and they do not need to be further specially noted at present. Undoubtedly the "considerations of fact of general application," which now occupy our attention, have their most important relation to the Florida, the Alabama, the Georgia, and the Shenandoah, the principal agents in the injuries to the United States which enter into the subject of this Arbitration, and any special applicability to the circumstances of the other vessels need not at present attract our attention.

We present now to the notice of the Arbitrators certain Failure of Great GENERAL FACTS which inculpate Great Britain for failure to Britain to fulfill its fulfill its obligations in the premises, as assigned by the Treaty.

obligations.

I. The absolute omission by Great Britain to organize or set on foot any scheme or system of measures, by which Negligence in ob the Government should be put and kept in possession of taining information. information concerning the efforts and proceedings which the interests of the Rebel belligerents, and the co-operating zeal or cupidity of its own subjects would and did plan and carry out, in violation of its neutrality,

1 Counter Case of the United States, pp. 3, 4.

is conspicuous from the outset to the close of the transactions now under review. All the observations in answer to this charge, made in the contemporary correspondence, or in the British Case or Counter Case, necessarily admit its truth, and oppose the imputation of want of "due diligence" on this score, upon the simple ground that the obligations of the Government did not require it, and that it was an unacceptable office, both to Government and people.

No general means provided.

Closely connected with this omission was the neglect to provide any systematic or general official means of immediate action of immediate action in the various ports or ship-yards of the kingdom, in arrest of the preparation or dispatch of vessels, threatened or prob able, until a deliberate inspection should seasonably determine whether the hand of the Government should be laid upon the enterprise, and its project broken up and its projectors punished. The fact of this neglect is indisputable; but it is denied that the use of "due diligence to prevent" involved the obligation of any such means of prevention.

No general instruc

ilance.

We cannot fail to note the entire absence from the proofs presented to the Tribunal of any evidence exhibiting any desire or tions to maintain vig- effort of the British Government to impress upon its staff of officers or its magistracy, of whatever grade, and of general or local jurisdiction, by proclamation, by circular letters, or by special instructions, any duty of vigilance to detect, of promptitude to declare, of activity to discourage, the illegal outfit or dispatch of vessels in violation of international duty towards the United States.

ings.

proceed

It is not less apparent that Great Britain was without any proseNo officers charged cuting officers to invite or to act upon information which with instituting and might support legal proceedings to punish, and, by the terror thus inspired, to prevent the infractions of law which tended to the violation of its international duty to the United States. It was equally without any system of executive officers specially charged with the execution of process or mandates of courts or magistrates to arrest the dispatch or escape of suspected or incriminated vessels, and experienced in the detective sagacity that could discover and appreciate the evidence open to personal observation, if intrusted with this execu tive duty.

It is no answer to the imputation of want of "due diligence" in all this, that Great Britain dispensed with prosecuting officers in its maintenance of public justice, and relied upon the private interests of ag grieved parties to prosecute, at their own charge, and by their own law. yers, for crimes or offenses against the laws. It may be that murder, and burglary, and forgery, and frauds, in Great Britain, can be thus safely left to private prosecutions, because of the common interest and protection of the community securing due attention to the public justice, where all are enlisted to punish, and all feel the need of protection. But what analogy is there, in this situation, to the case of international obligation, where a foreign nation is the only sufferer, and interest and feeling in the domestic community are, at the best, indiffer ent and remote from the crime and its consequences? The actual hostile disposition of the population of the ports and emporiums of Great Britain at the time of these international injuries to the United States we need not, for the purpose of this suggestion, insist upon. The result of all this was that the Government of Great Britain, in the various ways we have suggested, exhibited none of the break up the hostile disposition or action which we have insisted upon as in"the cluded in the requirement of "due diligence to prevent occurrence of the injuries to the United States from the offending ves

No steps taken to

system.

sels of which they now complain. Early advised and persistently reminded by the Minister of the United States of the system and organization introduced within the jurisdiction of Great Britain to prepare, put forth, and maintain from thence maritime war against the United States, the Government of Great Britain took no steps to be informed of, to break up, or to punish this system, or preclude or render difficult, in advance, particular projects in aid of this general purpose. It early adopted and steadily adhered to the method (1) of regarding the whole duty as a domestic one of enforcement of municipal law, and (2) of reducing the function of the Executive Government of England to that of a magistrate receiving the complaints of the United States, and, with such legal acumen as it could command, disposing of them upon the sole consideration of the completeness of the offense against the municipal law, and the competency and sufficiency of the proof in hand to secure a conviction, should a prosecution be thought worth while.

the United

This theory and practice of Great Britain, rejecting the international duty and, necessarily, omitting any spontaneous, strenuous, The idea of an inand organized movements, as a Government, towards or international duty the discharge of such duty, were in themselves wholly in- States rejected. consistent with, and contrary to "due diligence to prevent" the injuries to the United States, for which redress is now asked through the judg ment of the Tribunal.

The obligations of

Great Britain in-letaken by the officers

pendent of steps of the United States in Great Britain.

The proposition covers the case of vessels which, in the absence of these necessary means for inspection and scrutiny, escaped the special notice of the Government. That they were not complained of, or discovered by the Minister of the United States, does not relieve Great Britain from its duty of " due diligence" to discover them, and to prevent their escape. The duty would have existed, if misfortune had deprived the United States of such a representative, or if broken diplomatic relations had removed him from the Kingdom. The proposition covers the cases of the Florida and the Alabama, were their more immediate features less obvious, and Great Britain's failure in duty only general. The proposition covers the cases of the Georgia and the Shenandoah, which escaped without attracting the notice of the British government, for the very best reason in the world, that it had taken no means to observe, to detect, or prevent their departure.

The Arbitrators will observe the wide difference from these views and conduct of Great Britain in the estimate which the United States have put upon their duty in these respects, of spontaneous, organized, and permanent vigilance and activity, and in the methods and efficacy of its performance. On all the occasions upon which this duty has been called into exercise, the Government of the United States has enjoined the spontaneous and persistent activity of the corps of District Attorneys, Marshals, Collectors, and the whole array of their subordinates, in the duties of observation, detection, information, detention, prosecution, and prevention.

The Government of

earnest to maintain

tral.

These chapters in the history of the law of nations, as observed by the United States, need not here be reviewed. The materials in the proofs before the Arbitrators are ample for their nited States always examination, if occasion in their delibrations should arise. its duties as a neuWhatever actual failures may have occurred in the execution by the United States of this admitted duty, they have been not for the want of, but in spite of, the exhibition and earnest prosecution of these general, spontaneous, and comprehensive means of prevention, the entire absence of which we complain of in the conduct of the Govern

ment of Great Britain. Nor has the conduct of other great Powers, under a similar obligation of duty, either adopted the theory or followed the methods by which Great Britain governed itself. That the Government, as such, should act and continue to act, and have and use the means of acting, and, in default of so doing, be responsible for the consequence, is, we submit, the public law of nations as observed by the principal Powers, including Great Britain in other cases than that now in judgment before the Tribunal.

Absence of this

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earnestness
Jart of Great Britain

a license for the acts
of hostility com-
plained of.

It was the failure of the British Government "to use due diligence” to maintain inviolate its international obligations to the United States, in form, manner, and effect, as above stated, that gave the first warrant and license to the enlistment of the sympathies for the rebels and hostility to the Government of the United States, (which animated such large and influential interests in Great Britain,) in the actual practical service of the Rebellion. It was this absence of an active affirmative disposition of diligence in the Government, so apparent to all its subjects, to the Rebel agents, and to the Minister and Consuls of the United States, that threw the whole unchecked freedom of trade and industry, enterprise and appetence of gain, so much insisted upon in the British Case and Counter Case as a necessary part of British liberty, into zealous complicity with, and earnest adhesion to, the maritime war against the commerce of the United States, whose disasters are under review before the Tribunal. In this course of practical non-administration of the duty assigned by the Treaty as binding upon Great Britain, we ask the Tribunal to find a definite and substantial failure to fulfill that duty, and to inculpate the Nation accordingly.

As early as August 28, 1861, the principal newspaper of Liverpool (the Post) correctly described the state of feeling in the British community as follows:

We have no doubt whatever that the vast majority of the people of this country, certainly of the people of Liverpool, are in favor of the cause espoused by the Secessionists. The defeat of the Federalists gives unmixed pleasure; the success of the Coufederates is ardently hoped, nay, confidently predicted."

It was an appreciation of this influence prevailing in that community and affecting the local officers of the Government, that prompted Earl Russell to say:

It appears to me that if the officers of the Customs were misled or blinded by the general partiality to the cause of the South, known to prevail at Liverpool, and that prima-facie case of negligence could be made out, Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.1

It needs no argument to show that if the Government of Great Britain in 1861 and 1862, when the systematic operations of the Rebel agents, in a community thus enlisted in their cause, were denounced by the Minister of the United States, had used to those agents and that community the language employed by Earl Russell in 1865, and had executed the sentiments thus expressed, there would have been no "Alabama claims" to occupy the attention of this Tribunal. Earl Russell, after stating that "he was sorry to observe that the unwarrantable practice of building ships in this country, to be used as vessels of war against a State with which Her Majesty is at peace, still continues," proceeded to say: "Now, it is very possible that by such shifts and stratagems the penalties of the existing laws of this country, nay, of any law that could be enacted, may be evaded; but the offense thus offered to Her Majesty's authority and dignity by the de facto rulers of

Note B of Appendix to this Argument.

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