as thus adjudicated, in the sense that belongs to this question of compensation, as one between nation and nation.

The disposition of this controversy by the Tribunal upon principles adequate to its profound interest to the Parties, and in the observant eyes of other nations, gives the best hope to the civilized world of a more general adoption of the arbitrament of reason, instead of force, in the disputes of nations.

And for, the rest, the permanent and immutable principles of JUSTICE are adequate for this, as for every other, situation of human affairs; for this, as for every other, Tribunal instituted in its name and for its maintenance. Justice-universal, immutable Justice-is wholly indestructible by the changing fortunes of States or by the influence of all-devouring time,

Casibus haec nullis, nullo delebilis aevo.

In this spirit we humbly submit the whole subject to the enlightened judgment of the Tribunal.

C. CUSHING.
WM. M. EVARTS.
M. R. WAITE.

15 C

APPENDIX.

NOTE A.-OBSERVATIONS ON CERTAIN SPECIAL CRITICISMS IN THE BRITISH COUNTER CASE ON THE CASE OF THE UNITED STATES.

I. THE BRITISH FOREIGN ENLISTMENT ACTS.

On the eighth page of the British Counter Case it is said: "The following sentence is given as a quotation from a dispatch signed by Earl Russell: 'That the British Foreign En- Foreign Enlistment Act, which was intended in aid of the duties

listment Acts.

of a neutral nation,' &c. What were the words of Earl Russell? They were these: That the Foreign Enlistment Act, which was intended in aid of the duties and rights of a neutral nation, can only be applied,' &c. The meaning of the sentence is altered by leaving out two of the most important words."

The Counsel of the United States are unable to discover how the insertion of the omitted words would increase or decrease, modify or affect, the proposition that the Foreign Enlistment Act was intended in aid of the duties of a neutral nation as represented by the United States.

On the same page of the British Counter Case it is further said:

"The report of the Commission appointed in 1867 to consider the laws of Great Britain available for the Enforcement of Neutrality is thus referred to: 'The Tribunal of Arbitration will search the whole of that Report and of its various appendices in vain to find any indication that that distinguished body imagined or thought or believed that the measures which they recommended were not in full conformity with international obligations. On the contrary, the Commissioners say that so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations.' Viewing their acts in the light of their powers and their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation as forbidden by international law. What is the passage which the Government of the United States have referred to, but have refrained from extracting? It is this: In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could be actually required by International Law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency and will, so far as we can see, have been brought into.conformity with your Majesty's international obligations.' Thus by leaving out the words in which the Commissioners observe that their recommendations may exceed the requirements of International Law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international law."

The United States accept without hesitation the issue thus raised by Her Majesty's Government, and they maintain that the language quoted in the British Counter Case does not justify the statement that the Commissioners observe, that their recommendations "may exceed the requirements of international law."

The Commissioners did not say this, nor anything which in any "sense" gathered from the "context," by any rule of interpretation, can be construed into the meaning which is attributed to it in the British Counter Case. They did use the exact language quoted in the American Case. They said that, if their recommendations should be adopted, the municipal law of Great Britain would, so far as they could see, have been brought into conformity to international obligations. They also said that, in making those recommendations, they had not felt themselves bound to consider whether they were exceeding what could be actually required by international law. In other words, they said that although it seemed to them that, while the proposed recommendations were in harmony with existing international obligations, yet they did not found the recommendation on that fact, but on its own intrinsic merits. The Arbitrators will judge whether this is not the fair and reasonable construction of the language.

II. AMERICAN NEUTRALITY IN 1793-'94.

ty in 1793-94.

It is said on page 10 of the British Counter Case that "it is pleaded that in 1793, during General Washington's Administration, the representative of American neutraliGreat Britain in the United States pointed out to Mr. Jefferson, who was then Secretary of State, acts 'which were deemed by Her Britannic Majesty's Government to be breaches of neutrality done in contravention of the President's Proclamation of Neutrality,' and he invited the United States to take steps for the repression of such acts, and for the restoration of the captured prizes," and that "it appears that the United States complied with these requests." It will be seen that the representations then made on the part of this country to the United States were founded on the character of the acts themselves, which were deemed by the British Government to be breaches of neutrality, and not upon the fact that they were prohibited by the President's Proclamation."

The letter from Mr. Hammond to Mr. Jefferson, which will be found on pages 240-41 (No. 6) of the fifth volume of the British Appendix is the best reply to this averment. The Minister of Her Britannic Majesty says to the American Secretary of State that he "does not deem it necessary to enter into any reasoning upon these facts, as he conceives them to be breaches of that neutrality which the United States profess to observe, and direct contraventions of the proclamation which the President issued on the 22d of last month." The United States submit that this letter is a complete justification of this allegation in their case which is contested by Her Majesty's Government.

Again, on page 29 of the British Counter Case, referring to the commission appointed under the seventh article of "Jay's Treaty," to ascertain the amount to be paid to Great Britain by the United States, it is said:

"Three leading decisions pronounced by them will be found in the Appendix to this Counter Case. By these decisions it was ruled:

"1. That according to the true construction of Article VII of the Treaty, coupled with Mr. Jefferson's letter, no claim could be made on account of a capture made before the 5th of June, 1793.

"Hence, compensation was refused in the case of a British vessel which had been captured on the 8th of May, by the Sans-Culottes, a privateer fitted out in Charleston, and had been openly brought by her captors into the port of Philadelphia.

"2. That no compensation would be made by vessels illegally fitted out within the jurisdiction of the United States, unless the prizes had been subsequently brought into an American port. The owners, therefore, of a vessel which the captors had destroyed at sea were entitled to no compensation.

"3. That where the prize has been brought in, no compensation could be claimed, if the claimant had not taken proceedings in a District Court of Admiralty, and proved his case there by sufficient testimony, or if there had been any negligence or any delay in instituting or carrying on such proceedings, or in enforcing the judgment if obtained.

"And it is said, on page 31, referring to what had been said by the United States in this case concerning this precedent: Her Majesty's Government deems itself entitled to ask whether these are correct representations of the facts stated in the foregoing pages.'"

The first point referred to in the Counter Case of Her Majesty's Government is, it will be perceived, an adjudication by the tribunal as to the extent of its jurisdiction, i. e., that it did not extend to cases arising before the 5th day of June, 1793. The United States did not suppose that this point would be questioned by Her Majesty's Government. They are at a loss to understand exactly what is intended by Her Majesty's Government in its remarks in respect to this point. The United States, in their Case, (on page 129,) say that Mr. Hammond was informed on the 5th of June, 1793, that "as to restoring the prizes it could not be done;" and on page 130, it is said that the United States Government also determined at that time as to the fitting out of privateers, that "it was its duty to repress them in future," and "to restore prizes that might be captured," &c., "or if unable to restore them, to make compensation for them."

The reasons for this distinction drawn between acts committed before, and those committed after, June 5, 1793, were fully and fairly stated by Lord Tenterden in his memorandum which is to be found in the third volume of the British Appendix, and the United States had supposed that no historical fact was better settled than that the British Government at that time and ever since had acquiesced in the propriety and the justice of the distinction drawn by General Washington.

When the United States made their statement now challenged, although they took the precaution to indicate that it referred to captures made after June 5, 1793, they might have assumed that it would have been so construed without that precaution. The second proposition, on the twenty-ninth page of the British Counter Case, is to be taken in connection with the other controlling and limiting remarks in the statement of the commissioner who rendered the decision.

APPENDIX.

NOTE A.-OBSERVATIONS ON CERTAIN SPECIAL CRITICISMS IN THE BRITISH COUNTER CASE ON THE CASE OF THE UNITED STATES.

I. THE BRITISH FOREIGN ENLISTMENT ACTS.

On the eighth page of the British Counter Case it is said: "The following sentence is given as a quotation from a dispatch signed by Earl Russell: That the British Foreign En- Foreign Enlistment Act, which was intended in aid of the duties

listment Acts.

of a neutral nation,' &c. What were the words of Earl Russell? They were these: That the Foreign Enlistment Act, which was intended in aid of the duties and rights of a neutral nation, can only be applied,' &c. The meaning of the sentence is altered by leaving out two of the most important words."

The Counsel of the United States are unable to discover how the insertion of the omitted words would increase or decrease, modify or affect, the proposition that the Foreign Enlistment Act was intended in aid of the duties of a neutral nation as represented by the United States.

On the same page of the British Counter Case it is further said:

"The report of the Commission appointed in 1867 to consider the laws of Great Britain available for the Enforcement of Neutrality is thus referred to: 'The Tribunal of Arbitration will search the whole of that Report and of its various appendices in vain to find any indication that that distinguished body imagined or thought or believed that the measures which they recommended were not in full conformity with international obligations. On the contrary, the Commissioners say that so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations.' Viewing their acts in the light of their powers and their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation as forbidden by international law. What is the passage which the Government of the United States have referred to, but have refrained from extracting? It is this: In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could be actually required by International Law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency and will, so far as we can see, have been brought into conformity with your Majesty's international obligations.' Thus by leaving out the words in which the Commissioners observe that their recommendations may exceed the requirements of International Law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international law."

The United States accept without hesitation the issue thus raised by Her Majesty's Government, and they maintain that the language quoted in the British Counter Case does not justify the statement that the Commissioners observe, that their recommendations "may exceed the requirements of international law.”

The Commissioners did not say this, nor anything which in any "sense" gathered from the "context," by any rule of interpretation, can be construed into the meaning which is attributed to it in the British Counter Case. They did use the exact language quoted in the American Case. They said that, if their recommendations should be adopted, the municipal law of Great Britain would, so far as they could see, have been brought into conformity to international obligations. They also said that, in making those recommendations, they had not felt themselves bound to consider whether they were exceeding what could be actually required by international law. In other words, they said that although it seemed to them that, while the proposed recommendations were in harmony with existing international obligations, yet they did not found the recommendation on that fact, but on its own intrinsic merits. The Arbitrators will judge whether this is not the fair and reasonable construction of the language.

II. AMERICAN NEUTRALITY IN 1793–94.

It is said on page 10 of the British Counter Case that "it is pleaded that in 1793, during General Washington's Administration, the representative of American neutraliGreat Britain in the United States pointed out to Mr. Jefferson, who was ty in 1793-'94. then Secretary of State, acts 'which were deemed by Her Britannic Majesty's Government to be breaches of neutrality done in contravention of the President's Proclamation of Neutrality,' and he invited the United States to take steps for the repression of such acts, and for the restoration of the captured,prizes," and that "it appears that the United States complied with these requests." It will be seen that the representations then made on the part of this country to the United States were founded on the character of the acts themselves, which were deemed by the British Government to be breaches of neutrality, and not upon the fact that they were prohibited by the President's Proclamation."

The letter from Mr. Hammond to Mr. Jefferson, which will be found on pages 240-41 (No. 6) of the fifth volume of the British Appendix is the best reply to this averment. The Minister of Her Britannic Majesty says to the American Secretary of State that he "does not deem it necessary to enter into any reasoning upon these facts, as he conceives them to be breaches of that neutrality which the United States profess to observe, and direct contraventions of the proclamation which the President issued on the 22d of last month." The United States submit that this letter is a complete justification of this allegation in their case which is contested by Her Majesty's Government.

Again, on page 29 of the British Counter Case, referring to the commission appointed under the seventh article of "Jay's Treaty," to ascertain the amount to be paid to Great Britain by the United States, it is said:

"Three leading decisions pronounced by them will be found in the Appendix to this Counter Case. By these decisions it was ruled:

"1. That according to the true construction of Article VII of the Treaty, coupled with Mr. Jefferson's letter, no claim could be made on account of a capture made before the 5th of June, 1793.

"Hence, compensation was refused in the case of a British vessel which had been captured on the 8th of May, by the Sans-Culottes, a privateer fitted out in Charleston, and had been openly brought by her captors into the port of Philadelphia.

"2. That no compensation would be made by vessels illegally fitted out within the jurisdiction of the United States, unless the prizes had been subsequently brought into an American port. The owners, therefore, of a vessel which the captors had destroyed at sea were entitled to no compensation.

"3. That where the prize has been brought in, no compensation could be claimed, if the claimant had not taken proceedings in a District Court of Admiralty, and proved his case there by sufficient testimony, or if there had been any negligence or any delay in instituting or carrying on such proceedings, or in enforcing the judgment if ob

tained.

"And it is said, on page 31, referring to what had been said by the United States in this case concerning this precedent: Her Majesty's Government deems itself entitled to ask whether these are correct representations of the facts stated in the foregoing pages.""

The first point referred to in the Counter Case of Her Majesty's Government is, it will be perceived, an adjudication by the tribunal as to the extent of its jurisdiction, i. e., that it did not extend to cases arising before the 5th day of June, 1793. The United States did not suppose that this point would be questioned by Her Majesty's Government. They are at a loss to understand exactly what is intended by Her Majesty's Government in its remarks in respect to this point. The United States, in their Case, (on page 129,) say that Mr. Hammond was informed on the 5th of June, 1793, that "as to restoring the prizes it could not be done;" and on page 130, it is said that the United States Government also determined at that time as to the fitting out of privateers, that "it was its duty to repress them in future," and "to restore prizes that might be captured," &c., "or if unable to restore them, to make compensation for them."

The reasons for this distinction drawn between acts committed before, and those committed after, June 5, 1793, were fully and fairly stated by Lord Tenterden in his memorandum which is to be found in the third volume of the British Appendix, and the United States had supposed that no historical fact was better settled than that the British Government at that time and ever since had acquiesced in the propriety and the justice of the distinction drawn by General Washington.

When the United States made their statement now challenged, although they took the precaution to indicate that it referred to captures made after June 5, 1793, they might have assumed that it would have been so construed without that precaution. The second proposition, on the twenty-niuth page of the British Counter Case, is to be taken in connection with the other controlling and limiting remarks in the statement of the commissioner who rendered the decision.