[166] *PART X. REMARKS IN CONCLUSION. Her Britannic Majesty's government has now stated, for the information of the arbitrators, the principal facts which it believes PART X.-Concludto be material to a just adjudication on the claims urged on ing remarks. the part of the United States. In so doing, Her Majesty's government has been under the unavoidable disadvantage of having to meet a case which has not yet been presented. When that shall have been done, and the claims of the United States shall have been clearly ascertained, Her Majesty's government will avail itself of the opportunity which it will have, under Article IV of the treaty, to submit to the tribunal such additional or more ample statement of facts as may then appear to be necessary. It forbears, also, until a comparison of the cases submitted on both sides shall have shown what points are really in dispute between the two governments, to enter into argument in support of its own position, and will, for the present, content itself with placing before the tribunal the considerations which follow. That vessels should, under whatever circumstances, have been procured from British ports for warlike use, and employed as belligerent cruisers against the United States, Great Britain herself being neutral, has been a subject of displeasure and regret to Her Britannic Majesty's government. This regret is not removed by the facts, material as they undoubtedly are to a just appreciation of the question, that the vessels were obtained by means of artifice and concealment, which defeated the vigilance of the officers of the government; that all of them, when they respectively departed from Her Majesty's dominions were wholly unarmed, and some of them constructed as mere merchant-ships, without any special adaptation for war; that they were few in number; and that the persons who gained possession and control of them, and by whom they were used for war, were themselves, as the Government of the United States has never ceased to maintain, American citizens. Circumstances such as these must greatly affect, in the judgment of any impartial person, the question as to the responsibility of the neutral government. Yet it is nevertheless true that the acts themselves, being such as, if done or authorized by the neutral government, would have compromised its neutrality, had an inevitable tendency to disturb its relations with the belligerent against whom they were directed. Her Majesty's government, therefore, has not hesitated to express its regret, frankly and publicly, to the Government of the United States, and has permitted the expression of it to be placed on record in the treaty which has been concluded between the two powers. But the Government of the United States insists that it is entitled to satisfaction in money for claims which it asserts have arisen out of acts of these vessels-that is, out of operations of war carried on, by means of them, by the persons in possession of them for the time being. It is manifest that this contention is one which Her Britannic Majesty's government, although animated by the most friendly feelings toward the United States, could not, with due regard for its own rights and those of neutral nations in general, consent to acknowledge, not believing it to be just. It is a claim of strict right, and can be supported only by clearly establishing that an international duty, owed by Great Britain to the United States, has been violated by Great Britain, and by showing further that an appreciable injury has accrued directly from this cause to the United States, for which Great Britain ought, in justice, to make reparation in money. It is for the Government of the United States, then, to substantiate these positions, to specify clearly the international duty or duties on which it relies, and to prove the violation of which it complains. A charge of injurious negligence on the part of a sovereign government, in the exercise of any of the powers of sovereignty, needs to be sustained on strong and solid grounds. Every sovereign government claims the right to be independent of external scrutiny or interference in its exercise of these powers; and the general assumption that they are exercised with good faith and reasonable care, and that laws are fairly and properly administered, (an assumption without which peace and friendly intercourse could not exist among nations,) ought to subsist until it has been displaced by proof to the contrary. It is not enough to suggest or prove that a government, in the exercise of a reasonable judgment on some question of fact or law, and using the means of information at its [167] *command, has formed and acted on an opinion from which another government dissents or can induce an arbitrator to dissent. Still less is it sufficient to show that a judgment pronounced by a court of competent jurisdiction, and acted upon by the executive, was tainted with error. An administrative act founded on error, or an erroneous judgment of a court, may, indeed, under some circumstances, found a claim to compensation on behalf of a person or government injured by the act or judgment. But a charge of negligence brought against a government cannot be supported on such grounds. Nor is it enough to suggest or prove some defect of judgment or penetration, or somewhat less than the utmost possible promptitude and celerity of action on the part of an officer of the government in the execution of his official duties. To found on this alone a claim to compensation, as for a breach of international duty, would be to exact, in international affairs, a perfection of administration which few governments or none attain in fact, or could reasonably hope to attain, in their domestic concerns; it would set up an impracticable, and therefore an unjust and fallacious standard, would give occasion to incessant and unreasonable complaints, and render the situation of neutrals intolerable. Nor, again, is a nation to be held responsible for a delay or omission occasioned by mere accident, and not by the want of reasonable foresight or care. Lastly, it is not sufficient to show that an act has been done which it was the duty of the government to endeavor to prevent. It is necessary to allege and to prove that there has been a failure to use for the prevention of an act which the government was bound to endeavor to prevent, such care as governments ordinarily employ in their domestic concerns, and may reasonably be expected to exert in matters of international interest and obligation. These considerations apply with especial force to nations which are in the enjoyment of free institutions, and in which the government is bound to obey, and cannot dispense with the laws. If the tribunal should come to the conclusion that Great Britain has incurred any liability to the United States, the question will then arise. what should be deemed the just measure and extent of that liability. Her Britannic Majesty's government abstains at present from entering into that question, and will reserve such observations as may be fitly offered in relation to it on the part of Great Britain to a later stage of the proceedings. Here it is sufficient to remark that a claim on the part of a belligerent to be indemnified at the expense of a neutral for losses inflicted or occasioned by any of the ordinary operations of war, on the plea that those operations were assisted or facilitated by negli gence on the part of the neutral government, is one which involves grave considerations and requires to be weighed with the utmost care. Losses of which such negligence is the direct and proximate cause, (and it is in respect of such only that compensation could justly be awarded,) are commonly not easy to separate from those springing from other causes. Success in warlike operations is generally due not only to the force possessed, but to the skill and courage exerted by the successful combatant. If claims of this nature were to be freely admitted, a belligerent might demand to be indemnified by the neutral against consequences fairly attributable, in part or altogether, not to the fault of the latter but to his own want of capacity and enterprise. Her Majesty's government has been compelled to point out that in respect of the vessels to which the foregoing statement relates there was, on the part of the Government of the United States or its officers, an extraordinary remissness in using the naval forces at their disposal, and that if ordinary activity had been exerted in the endeavor to intercept and capture these vessels, the losses of which the United States now complain would probably have been in great measure averted. It cannot be consistent with any reasonable view of international obligations that a belligerent state, alleging itself to be aggrieved by some imputed negligence of a neutral government, should on that account claim indemnity from the neutral for losses in the course of warlike operations which it has not actively and diligently exerted itself to prevent or arrest. It was the constant aim of Her Britannic Majesty's government throughout the war to observe with fidelity and exactness the obligations, and to maintain unimpaired the rights, which the law and practice of nations have assigned to neutral powers. In upholding those rights all the nations of the world are interested; and it was the duty of Great Britain, as a maritime power of the first order, brought by circumstances into closer contact with the war than any other state, to resist on the one hand any encroachment on them, and to abstain on the other from any attempt to extend them beyond the just and expedient limits traced out by international law. Her Majesty's government has given the best proof of its sincerity in these respects, as well as its earnest desire to promote the pacific and amicable settlement of international differences, by proposing and agreeing to refer to the judg ment of impartial arbitrators the question whether, in the matters complained of by the United States, it has failed to discharge any international duty. In deciding on the questions submitted to [168] it, the tribunal will be called upon to apply to them principles and considerations of wide application, not confined to a time neutrality, nor to the acts and conduct of maritime nations alone. Great Britain is prepared to accept the award, whether favorable or unfavorable to her. She desires only that it shall be just. She claims only that it shall be founded on a true and equitable interpretation of the law of nations, and on principles which she herself and all other powers may be satisfied, whether as neutral or as belligerent, to acknowledge and abide by in time to come. |