the purpose of giving it increased efficiency and bringing it into full conformity with international obligations, all joined in this report:

In time of war no vessel employed in a military or naval service of any belligerent which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted into any port of Her Majesty's dominions.1

That these are not extreme or disputed propositions, is evident from the concurrence therein of Lord Cairns, Baron Bramwell, Sir Roundell Palmer, and Mr. Gregory, as well as Dr. Phillimore, Mr. Vernon Harcourt, Mr. Thomas Baring, and Mr. Forster.

On the 4th of August, 1870, in the House of Commons, the attorneygeneral, Sir R. P. Collier, having reference to the omission, from the Foreign Enlistment Act, of a clause carrying out the report above cited, said:

He had to explain that, although the Royal Commissioners made a recommendation to the effect of this clause, they did not intend that it should be embodied in an act of Parliament, but that it should be carried out under the Queen's regulations. The Governor of a Colony would, under this clause, have to determine whether a ship entering his port was illegally fitted out or not, and this was enough to show the object the commissioners had in view could not be carried out by an Act of Parliament. It was intended instead to advise Colonial Governors of the escape of any illegally fitted vessels.

Thus it appears that Her Majesty's Government fully recognizes the power of the Royal Prerogative to exclude from British ports any vessel or class of vessels which has violated its neutrality. Brazil, when the occasion for the exercise of this right was presented, considered it equally a duty, and issued and executed her order, for the exclusion of the Alabama and Shenandoah from any port of the Empire.3

Probably, the suppression of the maritime hostilities, from which the United States have suffered, would have followed from the milder measure of proscription from British ports, enforced by arrest and detention, if the prohibition was transgressed. The lead thus taken by Great Britain would naturally, if not necessarily, have been followed by the other powers whose possessions afforded a casual and infrequent resort for the offending vessels. Following, at greater or less interval, as they had, the recognition of belligerency declared by Great Britain, these powers would have admitted the common duty of neutrals, in the peculiar situation of maritime hostilities presented, to accept the denunciation by Great Britain of the escaped vessels as outlaws and not belligerents, and denied them further hospitality.

tions to insurgent

agents respecting these cruisers were

5. Certainly, in the absence of such proscription, it would seem neThe representa. Cessary that some representations should have been made by Her Majesty's Government to the persons with whom it so long delayed and was in the habit of communicating as, in some sort, accredited by the Rebel organization for such purpose, concerndue diligence. ing the flagrant violations of neutrality in which Great Britian was involved, by the system of operations of the Rebel agents heretofore brought to the notice of the Tribunal.*

so feeble as to amount to want of

The Arbitrators will search the British Case and Counter Case, and the body of their appended proofs, in vain, for the least intimation of such representations. But we are not left to inference based upon this state of the evidence. In the American Appendix will be found certain correspondence between Earl Russell and Mr. Mason, (then per manently resident in London,) which exhibits an entire unconcern in

1 Am. App., vol. iv, p. 82.

3

Supra, p. 17, sec. viii.

2 See Appendix to this Argument, Note B. 4 Am. App., vol. vii, p. 113.

the mind of Her Majesty's Foreign Secretary at the time the escape of the Alabama was a fresh incident at home, and the dealing with the escaped Florida by the colonial authorities at Nassau was under the notice of the Home Administration. During the very period of these two matters of the Florida and the Alabama, which Earl Russell subsequently stigmatized in Parliament as "a scandal and a reproach" to England, a correspondence between the Foreign Secretary and Mr. Mason was in progress, in which the most friendly tone and topics prevailed. This correspondence begins with July 17, and terminated with a letter of Earl Russell, August 2, 1862. This, it will be noticed, runs through the time of the deliberations of the British Government as to the arrest of the Alabama, and beyond the consummation of her successful evasion from Liverpool. But not a word on the subject is found in the correspondence.

Again, at the end of the year 1864, another correspondence between the same writers took place, and that nothing of expostulation or resentment, or exaction of redress for these continuing outrages, finds place in it, may be well inferred from the manner in which Mr. Slidell feels justified in commenting to Mr. Benjamin, of the Confederate Cabinet, upon Earl Russell's concluding letter:

His Lordship voluntarily went out of his way to say the most disagreeable thing, possible to the Northern Government; his reference to the Treaty of 1783 will, I think, be especially distasteful to them, placed in connection with his twice-repeated recognition of the separate existence of the North and South, as never merged in a single nationality. I should be much surprised if this letter does not call forth a universal howl against his Lordship from the Northern press.

That Her Majesty's Government could promptly, and without enfeebling courtesy, discharge this duty of remonstrance to a belligerent against supposed or intended violations of its neutral obligations, is demonstrated by the correspondence of Earl Russell with Mr. Adams in regard to some matters which seemed to Her Majesty's Government to require explanations from the United States.

On the 30th of November, 1863, Earl Russell thus wrote to Mr. Adams in part as follows:

I have the honor to call your attention to the following statements, which have come to the knowledge of Her Majesty's Government, respecting the shipment of British subjects on board the United States ship of war Kearsarge, when in the port of Queenstown, for service in the Navy of the United States.

I need not point out to you the importance of these statements, as proving a deliberate violation of the laws of this country, within one of its harbors, by commissioned officers of the Navy of the United States.

Before I say more, I wait to learn what you can allege in extenuation of such culpable conduct on the part of the United States officers of the Navy, and the United States Consul at Queenstown.3

On the 31st of March, 1864, Earl Russell wrote to Mr. Adams as follows:

I have the honor to bring to your notice an account, taken from a newspaper, of what passed at the trial before Mr. Justice Keogh of the British subjects indicted for having taken service in the United States ship Kearsarge, at Queenstown, in violation of the provisions of the Foreign Enlistment Act; and, with reference to the correspondence which has passed between us, I have the honor to request that you will inform me whether you have any explanations to offer on the subject.*

On the 9th of April, 1864, Earl Russell, writing to Mr. Adams, said:

I transmit to you herewith extracts from a deposition of one Daniel O'Connell, by

which you will perceive that he was examined and sworn before, or with the knowledge of, officers of the United States ship of war Kearsarge, and furnished with the uni form of a United States sailor.

I know not how these circumstances, occurring on board a ship of war, can have taken place without the knowledge of the captain of the vessel.1

So, too, Her Majesty's Government did find occasion and opportunity to address its first remonstrance on the subject of these violations of neutrality to the persons with whom it was in the habit of treating as representatives of the Rebel organization. This was February 13, 1865, just two months before the final overthrow of the Rebellion and the surrender of Richmond. We append the opening and concluding paragraphs of this remonstrance. They form part of the letter from which important citations have been made in this argument, and a considerable extract from which is placed at the head of part v, of the case of the United States. By that extract it appears 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" was still continued, and formed a main subject of the remonstrance. We quote from Earl Russell's letter:

It is now my duty to request you to bring to the notice of the authorities under whom you act, with a view to their serious consideration thereof, the just complaints which Her Majesty's Government have to make of the conduct of the so-called Confederate Government. The facts upon which these complaints are founded tend to show that Her Majesty's neutrality is not respected by the agents of that Government, and that undue and reprehensible attempts have been made by them to involve Her Majesty in a war in which Her Majesty had declared her intention not to take part.

You may, gentlemen, have the means of contesting the accuracy of the information on which my foregoing statements have been founded; and I should be glad to find that Her Majesty's Government have been misinformed, although I have no reason to think that such has been the case. If, on the contrary, the information which Her Majesty's Government have received with regard to these matters cannot be gainsaid, I trust that you will feel yourselves authorized to promise, on behalf of the Confederate Government, that practices so offensive and unwarrantable shall cease, and shall be entirely abandoned for the future. I shall, therefore, await anxiously your reply, after referring to the authorities of the Confederate States.

We find, too, that in March, 1865, hardly thirty days before the surrender of Richmond, the Colonial Governor at Nassau advised the home Government of the means that had, at last, been found to make the eva sion of another Florida impossible. The Governor writes to Mr. Cardwell, a member of the Ministry, as follows:

I take this opportunity of mentioning that for some weeks past I have had a report made to me of every steam-vessel arriving in the harbor, with special notice of any thing in the construction or equipment of any which differ from the ordinary blockaderunners, and the officers of customs are on the alert to detect and report any attempts to violate the provisions of the Foreign Enlistment Act.3

It is unnecessary to point to the conclusion which the Arbitrators must have anticipated, that these powers of remonstrance and these resources of vigilance, if resorted to in February and March, 1862, would have foreclosed the controversy now in judgment before the Tribunal. It is easy to see how these manifold failures of Great Britain to fulfill its international duty to the United States led to the enormous injuries, as their necessary consequences, which have constituted the sum of the grievance which, at the close of the Rebellion, the United States had suffered from this friendly power.

By confining attention and efforts to questions of legal conviction for municipal offenses, and becoming helpless in the meshes of lawyers and courts, Her Majesty's Government saw the Florida and Alabama emitted

'Am. App., vol. ii, p. 448.

3 Brit. App., vol. ii, p. 589.

2 Am. App., vol. i, pp. 630, 631.

from British ports, while they were "watched" by Government officers and debated about by eminent lawyers, and made them but forerunners of like offenders. The domestic law protected their evasion and paralyzed the government's prevention, and the international obligation had no place or authority at that stage of the transaction. But the moment they were out they were protected in their "expeditions of pillage, piracy, and destruction" by the law of nations, which, it was said, compelled Great Britain to hold her hands, by reason of the respect which international comity inspires for the "commission" of even such cruisers.

The British course

voluntary.

It was true that this debility of municipal law, and this homage to comity, were wholly voluntary on the part of Great Britain. The one was curable by Parliament, and the other lay at the in these respects discretion of the Crown. But Her Majesty's Government, while the events were in progress, did not find adequate reasons for any action, notwithstanding the wide-spread depredations which these offending vessels were committing.

Exclusion of

ports no benefit to

There was one measure of restriction upon these depredations which Her Majesty's Government adopted and persevered in, we mean the exclusion of prizes of either belligerent from Brit- prizes from British ish ports. This ordinance was consonant with sound prin- United States. ciples, and adopted and enforced in sincere good faith. But to this measure we can trace no real benefit in actually repressing the maritime hostilities. On the contrary, its most afflictive feature, the destruction of ships and their cargoes at sea, flowed from the circumstance that the rebels had no ports of their own which the naval power of the United States had not closed, and that their prizes were excluded from neutral ports. This was well pointed out by Earl Russell in parliament, in a passage already referred to.

It was for this reason that the well-meant exclusion of prizes from neutral ports gave to the rebel cruisers enlarged capacity for terror and for mischief, and shocked the civilized world with this spectacle of destructive violence. But the appeal that this consequence was a demonstration that maritime belligerency should never have been granted, and that the true remedy was to withdraw the concession, was not successful.

Under these two measures of homage to the rebel "commission," though it covered a Florida or an Alabama, and of acquiescence in the destruction of enemy's maritime property without adjudication, Amercan commerce was ground to powder, as between the upper and the nether millstone.

Meanwhile no retaliation of prize capture or destruction as enemy's property was possible. The law of contraband and breach of blockade was the only weapon at the command of the United States against the fleet of blockade runners owned and navigated by the Rebel organization, but protected as neutral property by the British flag. This retaliation was, necessarily, submissive to the prize jurisdiction and to condemnation only upon special proofs. It was thus that the whole rebel naval warfare was prosecuted by cruisers of unlawful British outfit, protected by British recognition of the Rebel flag, while the whole Rebel commercial marine was protected by the cover of the British flag. So, too, no opportunity to shut up, or to capture, or to destroy, any vessel in port, was open to the Navy of the United States; every port accessible to such vessel was a neutral port, which the United States could neither blockade nor invade with their hostilities.

We have exposed these peculiar features of intolerable hardship to

The responsibility of Great Britain for these failures in due

until the end of the

cruisers.

the United States in these maritime hostilities, for the bearing they have upon the failure of Great Britain to fulfill its diligence continued obligations under the Rules of the Treaty in refusing to career of the arrest the offending vessels in its ports, or to exclude them therefrom, after their original outfit and escape. We confidently submit that the Tribunal will find in this ground of inculpation, (1) a substantive failure of "due diligence," in the sense of the Treaty, and (2) a maintenance of continued responsibility for "all claims growing out of the acts of" these vessels during their career to its end.

It will remain, then, for the Tribunal to consider these various propositions of law and of fact, under which the actual conduct of Her Majesty's Government is now to be judged, and to apply them, so far as they shall approve themselves to the enlightened judgment of the arbitrators, to the exact analysis of the evidence touching each offending vessel, in a previous division of this argument set forth. We gladly recognize the great advantages which the contending parties will derive from the practical and comprehensive estimate of the decisive elements of the controversy, which the experience and sagacity that belong to conversance with public affairs enable the arbitrators to bring to the determination of this controversy.

No evidence of the

gence submitted by Great Britain.

We confidently submit that the British Government has not laid before the Tribunal any evidence tending to show the exercise exercise of the dili of due diligence," in respect of any one of the offending vessels, to prevent the occurrence of the violation of the international obligation imposed by the Three Rules of the Treaty. Indeed, we may safely go further and insist that, while the matters were in fieri, Her Majesty's Government did not at any time apply its thoughts or its purposes to the direct prevention of such violation. It was wholly engaged in considering what prosecutions for penalties and forfeitures under the Foreign Enlistment Act it could hopefully institute. For the reasons we have pointed out, this does not tend to make out "due diligence" to prevent the violation of the international obligation assigned by the Treaty.

A phrase in the first clause of the first Rule speaks of a neutral Government's duty being applicable to "any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace." What attention was ever paid by Her Majesty's Government, in its deliberations, its doubts, and its decisions, about arresting a vessel, to this broad criterion? We look in vain for the agitation of any such question in either of its elements, (1) of the subject of belief, or (2) the grounds required to support it. Instead, the whole topic of debate, of advice, and of determination before Her Majesty's Government was (1) of belief that a forfeiture of the vessel could be obtained under the Foreign Enlistment Act, and (2) the support required for such belief was to be sworn voluntary evidence in hand sufficient to exclude appreciable risk of failure before a jury and consequent damages. Whenever the United States shall have submitted by Treaty to this test of the international obligations of Great Britain, it will be time enough to adjudge the cause by it.

We respectfully submit that there is nothing in the evidence, or argument even, which proves or asserts that the British Government was either without reasonable ground to believe, or did not believe, that the Florida or Alabama at Liverpool, or the Florida on her first visit to Nassau, was not intended to cruise against the United States. The only deliberation and doubt were, as to the prosecution under the foreignenlistment act offering the means of judicially punishing, and so, incidentally, interrupting, the projected enterprise.