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There was in the Case no allegation of permission or neglect by the Government of the United States as to the arming of the French cruiser. The commissioner said: "The Counsel for the claimant seemed to suppose that the obligation to compensate arose from the circumstance of the privateer having been originally armed in the United States. But as there is not the smallest evidence to induce a belief that in this or in any other case the Government permitted, or in any degree connived at, such arming, or failed to use all the means in their power to prevent such equipment, there is no ground to support a charge on the fact that the armament originated in their ports."

In view of the fact that this very material qualification of the doctrines laid down in the case of the Jamaica is excluded from the British Counter Case, the United States think they are justified in repeating as to the statements in the British Counter Case, the question there propounded by Her Majesty's Government, whether these are correct representations of the facts.

As to the third proposition, on the twenty-ninth page of the British Counter Case, the United States refer to the opinion in the case of the Elizabeth, (British Appendix. volume v, pp. 319-328,) upon which it is said to be founded, which in the opinion of the United States forms no adequate or just foundation for the assertion that it was there decided that no compensation could be claimed "if there had been any negligence or any delay in instituting or carrying on proceedings in a district court of admiralty," or if the claimant "had not proved his case there by sufficient testimony," or if there had been "delay in enforcing a judgment if obtained." The Tribunal will also judge whether this is a correct representation of the facts.

III.-THE UNITED STATES AND PORTUGAL.

On pages 32 and 33 of the British Counter Case will be found an extract from a letter from Mr. da Serra, Portuguese Minister at Washington, to the Secretary of State of the United States, dated November 23, 1819; and, commenting upon this extract, it is said on page 33 that

United States and Portugal

"In the Case of the United States, the Minister who writes thus earnestly and vehemently is represented as attaching little or no importance to the matter. The reason given is that he has chosen the moment to make a visit to Brazil. But in the sentences which precede and follow, and of which no notice is taken in the Case of the United States, he has explained why he chose to leave his post at that particular time, namely, that until, by amendment of the law or otherwise, the proper means should be found for putting an end to this monstrous conspiracy,' he found by experience that complaints were useless, and should refrain from continuing to present them without positive order."

The statement in the Case of the United States which is thus commented upon was the following:

"On the 23d of November, 1819, the Minister again complained. He says: 'One City alone on this coast has armed twenty-six ships which prey upon our vitals, and a week ago, three armed ships of this nature were in that port waiting for a favorable occasion of sailing for a cruise.' But he furnishes no facts, and he gives neither proof nor fact indicating the city or the district which he suspected, and nothing to afford the Government any light for inquiry or investigation. On the contrary, he says: 'I shall not tire you with the numerous instances of these facts; and he adds, as if attaching little or no real importance to the matter, ‘relying confidently' on the successful efforts of this Government, I choose this moment to pay a visit to Brazil." (American Case, p. 143.)

The first fact that will strike the Tribunal is that in this statement assailing the fairness of the analysis of this letter which is given by the United States, the extract at the close of the United States analysis is not to be found. In fact, the British Connter Case omits the following paragraphs of Mr. da Serra's letter, which, in the judgment of the United States, are the paragraphs the most essential in this controversy: "The Executive, having honorably exerted the powers with which your Constitution invests him, and the evil he wished to stop being found too refractory, it would be mere and fruitless importunity if I continued with individual complaints except by positive orders. This Government is the only proper judge of what constitutional depositions or arrangements may be established for the enforcement of the laws, and he alone has the means of obtaining them, which are constitutionally shut to any foreign minister. I trust in the wisdom and justice of this Government that he will find the proper means of putting an end to this monstrous intidel conspiracy, so heterogeneous to the very nature of the United States.

"Before such convenient means are established, the efforts of a Portuguese Minister on this subject (the only one of importance at present between the two nations) are of little profit to the interests of his Sovereign. Relying confidently on the successful efforts of the Government to bring forth such a desirable order of things, I choose this moment to pay a visit to Brazil, where I am authorized by His Majesty to go. My age

and my private affairs do not allow much delay in making use of this permission, and I intend to profit by the first proper occasion that may offer." (British Appendix, volume iii, page 155.)

The United States submit to the Arbitrators that the letter of Mr. da Serra, when completed by adding the passage omitted in the British Counter Case, justifies the statement made in their Case.

1. It refers to representation made "during more than two years" previously. This reference to what had already been noticed in the analysis in the American Case it was not necessary to repeat.

2. It makes an averment as to twenty-six ships armed in one city, and as to three armed ships which were said to be in that port the previous week. This averment is given in the American Case in Mr. da Serra's own language.

3. It says that Mr. da Serra will not tire Mr. Adams with the numerous instances of the facts, but he gives a reason for this which is omitted in the British Counter Case, namely, that while he is sick of receiving communications of Portuguese property stolen, he recognizes that the Government of the United States has been sincere in its desire to suppress what he complained of, and has exerted itself as much as it could to that end.

4. The United States cannot be said to have represented Mr. da Serra as attaching little or no importance to the matter. "What they actually said was," he adds, as if attaching little or no importance to the matter, " relying confidently on the successful efforts of this Government, I choose this moment to pay a visit to Brazil," and they submit that he certainly did not do what it said in the British Case that he did do," Explain why he chose to leave his post at that particular time, namely, that until, by the amendment of the law or ortherwise, the proper means should be found for putting an end to this monstrous conspiracey,' he found by experience that complaints were useless, and should refrain from continuing to present them without positive orders."

IV.-NASSAU IN DECEMBER, 1861, AND JANUARY, 1862.

On page 62 of the British Counter Case, it is said:

"It may, however, be convenient, since the Government of the United States has charged Earl Russell with having neglected to make inquiry and contented himself with announcing a condition of affairs at Nassau' which was' imaginary,' to state what was actually done by Earl Russell upon

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Nassau.

the receipt of Mr. Adams's representation, what had been previously done, and what were the facts existing at the time."

The allegation that "the United States have charged Earl Russell with having neglected to make inquiry, and contented himself with announcing a condition of affairs at Nassau which was imaginary," is itself an imagination. The United States did not deny that Earl Russell made an inquiry. They said that had Earl Russell seriously inquired into the complaints of Mr. Adams, a state of facts would have been disclosed entirely at variance with the report which Earl Russell, on the 8th day of January, 1862, sent to Mr. Adams as a correct statement of what was taking place at Nassau, and that that statement was imaginary. The facts which are shown prove this. Mr. Adams, on the 8th day of October, 1861, transmitted to Earl Russell a letter showing that " a quantity of arms and powder," for the use of the insurgents, was "to be shipped to Nassau," consigned to Henry Adderley. Earl Russell answered this complaint on the 8th day of January, 1862, by saying that the Lieutenant Governor of the Bahamas had received a letter from Mr. Adderley denying the allegations brought against him, and that the receiver-general at Nassau said that no warlike stores had been received at that port. The United States proved in their Case that on the 8th day of January, warlike stores had arrived in Nassau, and had been transshipped. Her Majesty's Government, in its Counter Case, has since proved the same thing more in detail. On the 12th December, Lieutenant Governor Nesbitt knew of the consignment. (British Appendix, vol. v, p. 27, No. 8.) On the 28th December, he knew of the transshipment. (Same, No. 9.) It is clear, therefore, that the averment of the United States that the "condition of affairs at Nassau," as announced by Earl Russell on the 8th of January, was "imaginary" is correct. Whether the inquiries of Earl Russell were "seriously' prosecuted, the United States leave to the Arbitrators to decide, on a comparison of dates. The complaint by Mr. Adams was made on the 1st of October, 1861. (United States Evidence, vol. i, p. 520.) The instructions to the Lieutenant Governor to make the investigation were dated the 15th October. (British Appendix, vol. v, p. 26.)

The inquiry of Adderley was made on the 16th November, and the answer communicated to London on the 20th November. On the 9th day of December the Gladiator arrived, with palpable proof that the answer of the 20th November had misinformed Her Majesty's Government. Between that day and the 8th January, the date of Earl Russell's note to Mr. Adams, there was plenty of time to have given Her Majesty's Government correct information, which was not "imaginary." That was either not done, or if done it was never communicated to the Government of the United States.

On page 65 it is said:

"It might have been reasonably supposed, therefore, that the course pursued by the authorities at Nassau in the case of the Flambeau and her coal ships, would have merited the approval of the Government of the United States instead of being denounced as a violation of neutrality. What, then, is the grievance of the United States! It is that the United States cruisers were precluded from using the Bahamas for belligerent operations."

The United States cannot permit themselves to characterize this statement as it deserves. They do not complain that they were "precluded from using the Bahamas for belligerent operations," but they do complain, and they assert that they have proved, that the insurgents were encouraged to use all the British ports for such operations.

NOTE B.-EXTRACTS FROM VARIOUS DEBATES IN THE PARLIAMENT OF GREAT BRITAIN REFERRED TO IN THE FOREGOING ARGUMENT.

I. THE FOREIGN-ENLISTMENT ACT OF JULY 3, 1819.

Debates in Parliament on the passage thereof.

In the House of Commons, 15th May, 3d, 10th, 11th, and 21st June, 1819. (See Hansard's Parliamentary Debates, first series, vol. xl, pp. 362-374, pp. 867909, pp. 1084-1117, pp. 1118-1125, pp. 1232-1285.)

Foreign Enlist ment Act of July 3, 1819.

In the House of Lords, 28th June, 1819. (See ibid., pp. 1317-1416.) On May 13, 1819, the Attorney General moved for leave to bring in a bill to prevent enlistments and equipments of vessels for foreign service. He said:

"He wished merely to give this country the right which every legitimate country should have, to prevent its subjects from breaking the neutrality existing toward acknowledged states, and those assuming the power of any states. It was in the power of any state to prevent its subjects from breaking the neutrality professed by the Government, and they were not to judge whether their so enlisting would be a breach of nentrality or not." (Pp. 362, 363.)

He said further:

"The second provision of this bill was rendered necessary by the consideration, that assistance might be rendered to foreign states through the means of the subjects of this country, not only by their enlisting in warfare, but also by their fitting out ships for the purpose of war. It was extremely important for the preservation of neutrality, that the subjects of this country should be prevented from fitting out any equipments, not only in the ports of Great Britain and Ireland, but also in the other ports of the British dominions, to be employed in foreign service. The principle in this case was the same as in the other, because by fitting out armed vessels, or by supplying the vessels of other countries with warlike stores, as effectual assistance might be rendered to a foreign power as by enlisting in their service." (P. 364.)

Sir James Mackintosh, opposing the bringing in of the Bill, said:

"It was impossible to deny that the sovereign power of every state could interfere to prevent its subjects from engaging in the wars of other states, by which its own peace might be endangered, or its own interests affected. His Majesty could command his own subjects to abstain from acts by which the relations of the state with other states might be disturbed, and could compel the observation of peace with them." (P. 366.)

Lord Castlereagh, favoring the bringing in of the Bill, said:

"It now became us to adopt a measure by which we might enforce the common law against those whose conduct would involve us in a war, and to show that we were not conniving, as we were supposed, with one of the parties." (P.369.)

Leave was given to bring in the Bill. (P. 374.)

On June 3, 1819, the Attorney moved the second reading of this Bill, and said: "Such an enactment was required by every principle of justice; for when the state says, 'We will have nothing to do with the war waged between two separate powers,' and the subjects in opposition to it say, 'We will, however, interfere in it,' surely the house would see the necessity of enacting some penal statutes to prevent them from doing so; unless, indeed, it was to be contended that the state and the subjects who composed that state might take distinct and opposite sides in the quarrel. He should now allude to the petitions which had that evening been presented to the house against the bill; and here he could not but observe that they had either totally misunderstood or else totally misrepresented its intended object. They had stated that it was calculated to check the commercial transactions and to injure the commercial interests of the country. If by the words' commercial interests and commercial transactions' were meant warlike adventures,' he allowed that it would; but if it were intended to argue that it would diminish a fair and legal and pacific commerce, he must enter his protest against any such doctrines. Now, he maintained, that as war was actually carried on against Spain by what the petitioners called commercial transactions, it was the duty of the house to check and injure them as speedily as possible.". (P. 875.)

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Mr. Denman, opposing the bill, said:

"He was perfectly at a loss to conjecture by what ingenuity the honorable and learned gentleman could torture this argument into a denial of the power of the sovereign and the legislature." (P. 877.)

On June 10, 1819, the Attorney General moved the order of the day for going into committee on this bill.

Sir James Mackintosh, opposing the bill, said :

"The right honorable gentleman had observed that such a measure as the present had been introduced by the Government of the United States and acceded to by Congress. The United States, said the right honorable gentleman, concluded a treaty with Spain, and Congress passed an act to carry that treaty into effect. And why did they do so? Because, though the common law in England was sufficient for the required purpose, in America it was not. The power of making war and peace was not vested in the President of America as it was in the King of England. În America, therefore, a legislative act was necessary. But as His Majesty's proclamation of 1817 was still in force, how could any legislative measure be necessary in this country?" (P. 1094.) Mr. Canning, supporting the bill, said:

"The house had to determine, first, if the existing laws of the country would enable her to maintain her neutrality; secondly, if the repeal of those laws would leave the power of maintaining that neutrality; and thirdly, if both the former questions were negatived, whether the proposed measure was one which it was fit to adopt.” (P. 1104.) He said further:

"Was there, he would ask, anything incompatible with the spirit of liberty in enabling a government to lay such a restraint on the action of its own subjects as might insure the observance of perfect neutrality toward two belligerents? If there was, how happened it that the honorable and learned gentleman approved so cordially of the proclamation of 1817 ? In that proclamation, which was the only public act of the British government on the subject, a spirit of strict impartiality had been exhibited. Contemplating the character of that proclamation, what right had any man to infer that the feelings and opinions of government had undergone a change on the subject ?” (P. 1104.)

He said further:

"It surely could not be forgotten that in 1794 this country complained of various breaches of neutrality (though much inferior in degree to those now under consideration) committed on the part of subjects of the United States of America. What was the conduct of that nation in consequence? Did it resent the complaint as an infringement of its independence? Did it refuse to take such steps as would insure the immediate observance of neutrality? Neither. In 1795, immediately after the application from the British government, the legislature of the United States passed an act prohibiting, under heavy penalties, the engagement of American citizens in the armies of any belligerent power. Was that the only instance of the kind? It was but last year that the United States passed an act, by which the act of 1795 was confirmed in every respect, again prohibiting the engagement of their citizens in the service of any foreign power; and pointing distinctly to the service of Spain, or the South American provinces." (P. 1105.)

He said further:

"If a foreigner should chance to come into any of our ports and see all this mighty armament equipping for foreign service, he would naturally ask, 'With what nation are you at war? The answer would be, 'With none.'

"For what purpose, then,' he would say, are these troops levied, and by whom? The reply of course must be, 'They are not levied by government; nor is it known for what service they are intended; but, be the service what it may, government cannot interfere.' Would not all that give such a foreigner a high idea of the excellence of the English constitution? Would it not suggest to him that for all the ordinary purposes of a state there was no government in England? Did the honorable and learned gentleman not think that the allowing of armaments to be fitted out in this country against a foreign power was a just cause of war?" (P. 1106.)

He said further:

"It was the doctrine laid down by the English government itself that was now on its trial. This country was now called upon to say whether it would act on its own asserted principles. Those acts, which the bill under the consideration of Parliament tended to repress, were acts which in the document put forth by England forty years ago were termed a 'manifest breach of the law of nations."" (P. 1107.)

On June 11, 1819, Lord Castlereagh, in answer to an inquiry made in the debate on the bill, said: "That His Majesty's government had issued a prohibition against the exportation of arms or warlike stores to Cuba, or any of our West India islands, for the purpose of being sent to the service either of the provinces in insurrection, or of those continuing within the allegiance of Spain. They had taken precautions to guard against our own islands being made the means of thwarting the views of the parent state." (P. 1124.)

On June 21, 1819, the order of the day being for the third reading of the Foreign Enlistment bill, Sir W. Scott, supporting the bill, said:

"It was quite unnecessary for him to argue that it was just and proper to preserve a strict neutrality between a country and its colonies, when that country was bound to

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