not only to consider the terms of the proclamation of neutrality, but also the confidential instructions of the home government." On this it is remarked: "Here the United States learned for the first time that, in addition to the published instructions which were made known to the world, there were private and confidential, and perhaps conflicting, instructions on this subject." Her Britannic Majesty's government thinks that it will best consult its feelings of self-respect by leaving unnoticed the insinuation conveyed in this passage. It is no doubt true-and to persons possessing ordinary acquaintance with the details. of administrative government, it cannot appear surprising-that, in addition to the published instructions to governors of colonies, other instructions were sent from time to time, some of them explanatory of those published instructions, others supplementary to them, as cases arose to show the necessity of such explanations and additions. Such of these as were sent to the governor of Victoria, and have any bearing on the matter, are now laid before the tribunal in the Appendix.1 Among these instructions will be found one dated the 12th of December, 1863, which inclosed copies of certain correspondence respecting the visit of the Alabama to the Cape of Good Hope. All the material papers in this correspondence have already been laid before the tribunal. Among them will be found a report from the English law-officers of the Crown, in which the following passage occurs: With respect to the Alabama herself, we are clearly of opinion that neither the governor nor any other authority at the Cape could exercise any jurisdiction over her, and that, whatever was her previous history, they were bound to treat her as a ship of war belonging to a belligerent power. It will have been seen that these last words were reproduced in the answer returned to the representations of the United States consul at Melbourne, on the 30th of January, 1865.3 That these were the particular papers alluded to by the chief secretary is moreover obvious from the context of the speech, in which he mentions that the government had "before them the case of a vessel in exactly the same position as the Shenandoah." It may not be within the knowledge of the tribunal that the reports of the English law-officers of the Crown to Her Majesty's secretary of state for foreign affairs have, according to invariable custom, been hitherto considered as documents of a strictly confidential nature, to be made known to none but the executive officers of the government. This rule has now for the first time been departed from, through the anxiety of Her Britannic Majesty's government that the arbitrators should have before them all materials which could be made available for enabling them to form a correct judgment on the questions submitted to them. Into the subsequent history of the Shenandoah it is needless to enter. It has been accurately told in the British Case, and there is clearly nothing in it which could impose any responsibility whatever on this country. The United States must be well aware that, on account of the original outfit of the Shenandoah, they have no just claim against Great Britain. A sense of this, indeed, plainly betrays itself in the Case. An effort is therefore made to found a claim upon the circumstance that this vessel was admitted, in a remote colony of the British Empire, to the ordinary hospitalities of a neutral port, and upon what occurred during her visit there. The charges which it is endeavored to establish Appendix to British Case, vol. v, pp. 125–131. 2 Ibid., vol. i, pp. 300, 306, 312, 322. against the authorities of the colony, and through them against [101] Great Britain, are, in substance, two. One is, that she was suffered to repair her steam machinery, which is admitted to have been in need of repair, although (it is objected) she was not shown to be unseaworthy as a sailing ship. It would be difficult to imagine a much less reasonable complaint. The colonial authorities were right in giving this permission, which was given at Brest to the Florida, in spite of the remonstrances of the United States minister, and which is thoroughly sanctioned by custom. They would, indeed, have been guilty of a reprehensible refusal of ordinary hospitality if they had. not given it. The other charge is, that the vessel obtained in the port some addition to her crew, and that this was done with the connivance of the authorities of the colony. As the chief proof of connivance, it has been insisted that the ship remained in the port, undergoing repairs, a few days longer than the United States suppose to have been absolutely necessary. Again, to prove even this, which, if established, would be not merely inconclusive, but almost immaterial. there is a struggle against plain facts; and there is an endeavor to substitute conjectural estimates for those made on the spot, and at the time; circumstances are passed over which should have been taken into account; there are imputations of inattention where there was none, and suggestions of bad faith, to which the best answer is silence. Such is the character of the argument of the United States on this point. It has been answered step by step. But Her Majesty's govern ment deems it right to add one observation, the truth of which will hardly be disputed in any maritime country. The act here allegedthe recruitment of seamen in a neutral port-is one which is difficult and well nigh impossible for the local authorities to prevent altogether, by any reasonable precautions of their own, which would not be deemed offensive by a belligerent. It is necessary, therefore, either wholly to exclude belligerent ships of war from access to, and refuge in, neutral harbors, or to place some reliance on the word of the commanding offcer, and on that honorable understanding which, while it surrounds the vessel on her entrance with a peculiar immunity from the exercise of local jurisdiction, binds her at the same time to respect the sovereignty and neutral rights of the nation whose hospitality she enjoys. It is practically necessary to rely much on this understanding, and it is customary to do so. It has never been held that the duty of the neutral authorities is to surround a foreign ship of war with spies, to dog the steps of her officers, refuse credit to their solemn assurances, or issue warrants against them on suspicion. No neutral power would undertake to do this, and no belligerent would endure it patiently. Great Britain has never hitherto hesitated to trust American officers, as she trusts those of other countries; and she did not deem herself bound to withdraw that customary confidence from officers whom civil dissension had armed against their own country, and who were engaged in an unhappy contest, which she sincerely deplored. THE CLARENCE, TACONY, ARCHER, TUSCALOOSA, TALLAHASSEE, CHICKAMAUGA, AND RETRIBUTION. PART VIII.-The Archer, and Tusca In respect of these vessels (with perhaps one exception, which will be noticed presently) no failure of duty on the part of Great Britain is expressly or distinctly alleged by the United Clarence, Tacony, States. As to the first four, it is only insisted that, as they loosa. were armed and employed as tenders by vessels in respect of which there is alleged to have been a failure of duty, Great Britain ought to be charged with the losses occasioned by them to the United States. THE TALLAHASSEE AND CHICKAMAUGA. The Tallahassee Her Majesty's government has little information respecting the earlier history of these two vessels, beyond what may be gathered from documents presented to the arbitrators by the and Chickamauga. United States. From this source it may be collected that they were two out of a number of steamers built in England for blockade-running, and all alike, or nearly alike, in construction. They were built for speed, with double screws. There is no pretense for saying that either of them was, either wholly or in part, specially adapted within British territory for warlike use; nor has this been alleged by the United States. It is clear that they were without any such special adaptation. Both of them had been noticed, before they originally left England, by the United States consular officers, who were always on the watch to detect any indications of such an object or purpose; but as to neither of them was the least suspicion expressed that she was fitted or intended for any employment other than blockade-running. The Tallahassee is, indeed, in the Case of the United States, alleged to have been "fitted out to play the part of a privateer;" and, for the evidence of this, the arbitrators are referred to a letter from Mr. Adams to Earl Russell. It might have been inferred from such a reference that Mr. Adams had asserted the fact, or at least expressed a suspicion of it, at the time. But the letter is dated 15th March, 1865, when it had become well known that the ship had for a short period been taken from her usual employment and used in making prizes. Although the assertion mentioned above has been made, unsupported by a particle of evidence, respecting the original outfit of the Tallahassee, the United States have not added to it another, without which it is not relevant to the questions at issue: namely, that the British government had reasonable ground to believe that the vessel was intended to be used for war. It would be of no avail to show (were it possible to do so) that the Tallahassee was fitted for war (which she was not) or intended to be used for war, (of which, again, there is no proof at all,), unless it could also be shown that the government of Great Britain was or ought to have been, in some way cognizant of that intention. But this is nowhere so much as alleged or suggested on the part of the United States. As these vessels were not constructed or specially adapted for war, so neither were they armed, fitted out, or equipped for war within British territory. They were fitted out for a quite different purpose. There is, indeed, so far as Her Majesty's government is aware, no evidence that they were built for the confederate government at all; although, like some other vessels which had originally been built for private trade, they were afterward found in the hands of that government. * In the summer of 1864, when the greater part of the southern seacoast had fallen into the hands of the United States, and access to the remaining ports of the confederacy (now more effectively blockaded) was becoming a matter of greater and greater difficulty, the confederate government appears to have tried the experiment of putting guns into one or two blockade-running ships and sending them out to cruise. The only vessels with which this experiment was tried, so far as Her [103] Majesty's government is aware, were the Atlanta and Edith, which were armed and commissioned, one after the other, under the names of the Tallahassee and Chickamauga. That the resolution was formed, in the case of the Chickamauga at any rate, after the ship had come into the possession of the confederate government, and in consequence of her being found fast under steam as a blockade-runner, is admitted in the Case of the United States. The expedient of thus arming and commissioning merchant-ships thus bought or hired for the purpose had been resorted to by the Government of the United States on a very large scale at the commencement and during the earlier part of the war. Vessels of all sorts and sizes, which could be made suitable (to borrow an expression from the Case of the United States) for "the sort of war carried on" by that government, were procured by scores, and employed as fast as they could be found. But neither the Tallahassee nor the Chickamauga was found well fitted for this new employment. The latter appears, from the statements of the United States, to have been only fifteen days at sea. The former, after a cruise of about three weeks, was "found to be ill-adapted for the purposes of war," and sold to a private merchant, who gave her the name of the Chameleon.1 It is represented in the Case of the United States that the Tallahassee, before her reconversion, cruised for a short time under the name of the Olustee. There is no evidence, however, of the identity of the Tallahassee with the Olustee, beyond a statement by one Boreham, whose ship was captured by the Olustee, that his ship's carpenter, who had previously been captured by the Tallahassee, thought they were the same.2 The visit of the Chickamauga to Bermuda will be noticed in a subsequent section. Here it is enough to say that the United States are in error as to the accommodation obtained by her at that colony and the coal shipped there. The United States notice the facility with which one of these vessels 'Mr. Wilkinson to Mr. Gilbert, Appendix, vol. v, p. 151. The Atlanta bronght carge from Wilmington to Bermuda early in July, 1864, and cleared outward again with cargo, as a merchant-ship, immediately afterward. At the end of July or beginning of August she may have been armed at Wilmington, and dispatched thence as the Tallahassee; and she is said by the United States to have returned to Wilmington on the 25th of August. 2 Appendix to the Case of the United States, vol. vi, p. 732. (the Tallahassee) was reconverted into a ship of commerce, in which character she was afterward suffered to enter and remain in British ports; and it appears to be suggested that this ought to have been in some way prevented by Her Majesty's government. In the case of this vessel, the question whether the lieutenant-governor of Bermuda had acted rightly in treating her as no longer a ship of war was referred to the law-officers of the Crown, who reported as follows: With respect to the first question contained in the dispatch from the lieutenant-governor of Bermuda, we are of opinion that he exercised a sound discretion in treating the Chameleon (after he had satisfied himself of the truth of the representations made by her master) as a merchant-vessel belonging to the country of one of the belligerents. It is competent to the government of either belligerent to sell or transfer a ship of war to a private merchant, or to change the character of a vessel from that of a ship of war to that of a merchant-vessel, if the government chose to trade on its own account. To the second question, we answer that the merchant-vessels belonging to the citizens of both belligerents, and registered in their ports, ought to be admitted to the harbors of Her Majesty on the same footing. The absence of a formal recognition by Her Majesty of the Confederate States does not affect the principle of strict neutrality upon which the vessels of both belligerents are so admitted.1 A similar question was raised when she came to Liverpool, and was resolved in the same way. It is undoubtedly true that vessels, not originally designed for war, which have been temporarily employed for that purpose, like the two vessels in question, may be very easily reconverted into ships of commerce; but neutral powers cannot be called upon to exclude such a vessel from their ports on account of her former employment, nor to treat her otherwise than as a ship of commerce, if they have no reason to doubt the fact that she is no longer commissioned and armed for war. The vessels armed and commissioned in 1861 and 1862 by the Government of the United States were at liberty, when that employment was over, to return to their original trade; and for a neutral government to refuse to treat them either as ships of war when in commission, or as ships of commerce afterward, would have been wrong for exactly the same reasons which would have made such a refusal wrong in the case of the Sumter, (Gibraltar,) or of the Tallahassee, (Chameleon.) The arbitrators will look in vain, in the case of the United States, for any failure of duty charged against Great Britain in respect of [104] either of these vessels. It is not alleged that, in respect of either of them, this government failed to exercise due diligence to prevent a violation of any obligation specified in the three rules, or of any other neutral duty. The United States seem to have found themselves unable to make any definite charge; yet they nevertheless ask the arbitrators to hold Great Britain "responsible for the acts" of both these ships, and to award to the United States, on account of them, compensation calculated on the same basis as in the cases of the Alabama itself. Her Majesty's government has here no charge to meet, no argument to answer; and it has a right to call upon the tribunal to dismiss at once these utterly groundless claims. THE RETRIBUTION. We now arrive at the case of the Retribution. The account given of this vessel is, that she was built in the State of New York; was, in 1861, seized by the confederate government; was converted from a steamer into a sailing-ship in the waters of North Car 1 Appendix to British Case, vol. v, p. 153. The Retribution. |