French waters, where she received her armament. It is suggested, on the part of the United States, that it was the duty of the British Government to employ its naval forces in searching for and pursuing her on the high seas. No such duty exists, or has ever been recognized by maritime powers. It appears further to be suggested that she ought to have been pursued and seized in French waters. So far was this from being the duty of the British Government that it would have been a violation of the territorial sovereignty of France and a direct offense against the law of nations.1 Her Majesty's Government is not aware that any claim has ever been made upon France by the United States, on the ground that this vessel was not prevented from being armed for war within the territorial jurisdiction of that country. 68. The facts relative to the Shenandoah are stated in Part VIII of the British Case, and in Part VII of the British Counter The Shenandoah. Case. 69. The Shenandoah was a vessel designed and built solely for a merchant-steamer, and with a view to employment in the China trade; was originally employed in that trade; was afterwards sold in the London market to a Liverpool ship-owner; and was by him dispatched from London with a clearance for Bombay. At the time when she left England she was in no way fitted out, armed, or equipped for war. She had on board two smooth-bore, 12-pounder guns, but they were only the same guns which she had carried during her mercantile employment, and such as are usually carried by ships trading in the China seas, to be used as signal-guns, and for other purposes common to merchant-vessels.2 70. No representation was made, no information whatever was given to, or possessed by, the British Government, respecting this ship before her departure from England. The Government first heard of her five weeks after she had sailed, and then not from the Minister or Consul of the United States, but from Her Majesty's Consul at Teneriffe.3 71. There is not the slightest pretense for alleging that, in the character and appearance of the vessel, in her fittings or equipment, in her clearance, or in the hiring of her crew, there was anything whatever to excite suspicion in the officers of the Government at the port of London or elsewhere, or to lead to inquiry; nor that she had been, in fact, specially adapted to warlike use, either wholly or in part, before her final departure from this country. It has indeed been suggested, on the part of the United States, that the British Government ought to have known the name of the English merchant by whom she had been bought and was owned when she left England, and the circumstance that he was a connection by marriage of a member of the Liverpool firm of Fraser, Trenholm and Co.; and that it was a proof of a want of "the most ordinary diligence," on the part of Her Majesty's Government, not to be acquainted with and "take notice of" this circumstance. On the part of Great Britain, it is not thought necessary to trouble the Arbitrators with any argument in answer to this remarkable suggestion. 4 72. In the case of the Shenandoah, as in that of the Georgia, the United States seek to hold Great Britain liable for negligence in not having prevented the equipment or departure of a vessel which was never fitted out, armed, or equipped for war in British territory, and was never specially adapted therein for warlike use; as to which no 1 British Counter Case, pp. 90, 91. 2 British Case, p. 143; Appendix to ditto, vol. i, pp. 481, 494-97, 724, 725; British Counter Case, p. 93. 3 British Case, p. 136; Appendix to ditto, vol. i, p. 477. 4 Case of the United States, p. 417. representation or communication had been made to the Government, and no ground whatever existed for believing that she was intended for the Confederate States; which presented no circumstance of suspicion, and of the very existence of which the Government was totally uninformed. These pretensions are unsupported alike by the three Rules, and by the previously recognized principles of international law. Conclusion as to Georgia, and Shenan 73. It is submitted that, as to every one of these four ships, the United States have failed to establish the facts the Florida, Alabama, necessary to support an award against Great Britain. It doah. has not been, and cannot be, shown, in the case of any one of them, that the British Government, having reasonable ground to believe that she was intended to cruise and carry on war against the United States, failed to use due diligence to prevent her from being fitted out, armed, or equipped for that purpose within British territory, or from departing thence, after having been specially adapted within it to warlike use. pursued by the Brit sentations of Mr. 74. It was stated in the case of Great Britain that, in the General course course of the years 1861, 1862, 1863, 1864, and 1865, many sh Government in rerepresentations were addressed by Mr. Adams to Her Ma- gard to the reprejesty's Government respecting vessels which he believed to be either actually employed in carrying on trade with blockaded ports in articles contraband of war or other things, or to be preparing for such employment; and also with respect to other vessels which he believed to be intended to be used as privateers or commissioned ships of the Confederate States in cruising and carrying on war against the United States. To complaints of traffic carried on with blockaded ports, or in articles contraband of war, it was answered, on the part of Her Majesty's Government, that these were enterprises which Her Majesty's Government could not undertake to prevent, and the repression of which belonged to the United States as a belligerent Power. Allegations, on the other hand, that vessels were being prepared for cruising or carrying on war were immediately referred to the proper officers of the Government at the several localities for careful investigation and inquiry. If, on such investigation, it appeared by sufficient prima-facie evidence that any illegal act was being or had been committed, the vessels were forthwith seized, and proceedings instituted according to law; if not, the result was at once communicated to Mr. Adams, and directions were given to the local authorities to watch closely the vessels as to which his suspicions had been aroused.1 It is said, in the Counter Case of the United States, (Sec. III, par. 14,) that "the United States do not understand that it is true that 'allegations that vessels were being prepared for cruising or carrying on war were in all cases followed by seizure of the vessels when sufficient primafacie evidence of the illegal purpose was furnished. They understand the exact contrary to be the case.” The general course pursued by the British Government in these matters is correctly described in the foregoing extract from the British Case The United States question whether, "in all cases," this course was adhered to. Even with this addition, however, the proposition questioned is true, excluding only the case of the Alabama, in which some evidence sufficient to justify action on the part of the Government was indeed furnished, but furnished so late that the departure of the vessel took place before the Government had been advised to that effect. 75. It is, however, alleged, on the part of the United States, that each of these four vessels, if not actually armed and equipped for war within British territory, obtained her armament from thence; that this armament was in each case purchased and 1 British Case, pp. 31, 32. Charge that the armament of certain from Great Britain. vessels was procured sent out by the same person or persons who had procured and sent out the ship; that such person or persons was or were an agent or agents of the Government of the Confederate States, employed for these purposes; and that the crews with which the vessels were manned were chiefly composed of British subjects, obtained from England by the same agency. And it is contended that, under these circumstances, the Tribunal ought, as against Great Britain, to assume that these vessels were really armed and fitted out within British territory, and to make its award on that assumption. 76. To assume, under any circumstances, that vessels armed in the waters of Portugal or France were armed in Great Britain, is to assume a fiction; and to base an argument or award on this assumption, would be to base an argument or award upon a fiction. International duties and liabilities cannot be made to repose on such a foundation. If it be meant to affirm that a neutral Government is as much bound to prevent arms from being sent abroad for this purpose and under these circumstances, as to prevent the actual arming of a belligerent vessel of war within the neutral jurisdiction, where is the proof of this supposed obligation, and when was it sanctioned by the general consent of nations? It is perfectly unknown, and was never heard of before. The acts, which are supposed to be virtually the same, and which the neutral Government is on that account supposed to be under the same obligation to prohibit, are in reality different, and the reasons which support the international obligation in the one case are wanting in the other. To attempt to found such an obligation on the second of the three Rules, which prohibits, in language previously familiar to publicists, the use of neutral territory, by the permission or with the acquiescence of the neutral Sovereign, as a base of naval operations, or for the renewal or augmentation of military supplies or arms, would be clearly indefensible. Upon the manner in which the phrase "base of operations," and other similar expressions, have been from time to time applied to subjects not within their proper meaning in the diplomatic correspondence of the American Government, some observations will be made hereafter; in this place it is sufficient to point out that the sending abroad of munitions of war which are intended to be used in arming a particular ship, is not the same thing, and does not involve the same hostile use of neutral territory, as the placing of the same armament on board of the belligerent vessel in the port of the neutral country, from whence she is to sail when so armed; nor is it, like the latter, comparatively easy of repression without an unreasonable interference with neutral trade. How indeed is the neutral Government to know the destination of the arms, or for what market or vessel they are intended? This is a matter into which neutral Governments have never been held bound to inquire, and would certainly never undertake to inquire. Does the supposed obligation in respect of the export of arms arise when ship and arms are procured from different countries, or only when they are obtained from the same country?—when from different ports, or only when from the same port?—when purchased by different agents, or only when the agent is the same? Where is the line to be drawn, and is it to be the duty of the neutral Government to search out all these various circumstances, or how many of them; and how is it to do so? Little consideration is needed to show that, although the several acts, by which a ship, and the armament which is to be put on board of her, are separately procured and sent abroad, may, as against the persons by whom or by whose orders they are done, be regarded as so many steps in the execution of a single enterprise, and parts of one transaction, they can not with justice be so regarded as against the neutral Government, which (so far as it can deal with them at all in the way of prevention) can only deal with them separately, and which may, and most frequently would, be wholly ignorant of the existence of the plan that was their sole connecting link, or at any rate unable to substantiate it. For the acts done beyond its territorial jurisdiction, whether by neutral citizens, or by belligerents with their aid, the neutral State cannot be held responsible.1 77. The facts relative to the arming of the several vessels now in question have been stated in the Case and Counter Case of Great Britain, and they will be found to illustrate the truth of the foregoing propositions. 2 78. The Alabama departed from Great Britain wholly unarmed, and appears to have been equipped for war in the waters of the Azores, or partly in those waters and partly on the high seas, receiving her armament from two vessels which sailed respectively at different times from Liverpool and from London, without any apparent, known, or suspected connection with her. One of these, the Agrippina, cleared in the month of August from the port of London for Demerara; the other, the Bahama, cleared from Liverpool on the 11th of the same month for Nassau. There is nothing, so far as the British Government is aware, to distinguish these two vessels from others freighted with munitions of war, which might be destined for places in the Confederate States, or to attract the special attention of the officers of customs at the several ports.4 No information ever reached the British Government which could lead to the belief that they were employed to carry arms to a ship intended for the war service of the Confederate States, or for any purpose which the British Government could be called upon to prevent. 79. The Georgia, which also left Great Britain unarmed, received her armament in French waters from the Alar, a small steamer, which was stated to be a regular trader between the port of Newhaven in Sussex, on the British Channel, and the Channel Islands.5 The Alar sailed from Newhaven with a regular clearance for Alderney and St. Malo. It sub 1 See correspondence between the United States and Portugal: Mr. J. Q. Adams to the Chevalier de Serra, March 14, 1818, and September 30, 1820, (Appendix to British Case, vol. iii, pp. 150, 157.) 2 British Case, p. 97; Appendix to ditto, vol. i, p. 205. 3 British Case, pp. 100-104; Appendix to ditto, vol. i, pp. 208-213, Among the papers laid before Congress by the Government of the United States, and now also printed in vol. i of the Appendix to the British Case, (p. 252,) are two dispatches from Mr. Dudley, the United States consul at Liverpool, to his Government. The first of these, dated August 12, 1862, states that he "understands that Laird's gunboat 290 is somewhere either on the coast of England or Ireland, and that they are shipping to-day fifty more men who are to be taken to her to-night on a steamer." In the second, dated the following day, he reports that the men were placed on board the Bahama, which, after shipping them, and cannon, shot, and ammunition, had left her dock at 3 o'clock that morning, and was no longer to be seen. She had, in fact, sailed to meet the Alabama, which was, at that time, not off the coast of England or Ireland, as supposed by Mr. Dudley, but at Terceira, in the Azores, (see affidavits of Redden and Yonge, Appendix to British Case, vol. i, pp. 210, 220.) There appears no reason to believe that Mr. Dudley, before the sailing of the Bahama, knew or supposed that she was intended to carry out men or arms for the Alabama; nor, though he states that he had (apparently on the 13th, after her departure) written all the particulars to Mr. Adams in London, and to the United States consul at Dublin, was any representation made or information given to the British authorities either in London or Liverpool on the subject. The first information received by Her Majesty's government of the armament of the Alabama off Terceira was derived from a report of the customs officials at Liverpool, dated the 3d September following, on the return of the Bahama to that port. (Appendix to British Case, vol. i, p. 208.) 5 British Case, pp. 121-128; Appendix to ditto, vol. i, pp. 401-418. sequently appeared that, about two hours before her departure, (which occurred at 2 o'clock in the morning,) a number of persons, some of whom appeared to be seamen and some mechanics, had arrived by railway, and gone on board of her. On the day following that on which she sailed, the agent for the steamer told the collector of customs that she had munitions of war on board.1 At the time of her departure, there was nothing whatever to connect her with the Georgia, which had sailed three days before, under her original name of the Japan, from Greenock, for Point de Galle and Hong-Kong, and of which nothing was known to the customs officers at Newhaven or to the Government; nor does there appear to have been anything which would have warranted the customs officers in detaining or interfering with the Alar. No information had been received, nor was there any fact within the knowledge of the Government or their officers, until she had already sailed, indicative of anything hostile to the United States in her employment or destination. 80. The Shenandoah, which likewise sailed from England without armament, took it on board in Portuguese waters, near to the Madeira Islands.2 The steamer Laurel, by which it was conveyed thither, had sailed from Liverpool with a regular clearance for Nassau and Matamoras.3 There was nothing whatever to connect her with the Shenandoah, which had sailed on the previous day from the port of London for Bombay, under her original name of the Sea King, and of which nothing was or could be known to the customs officers at Liverpool, nor to the Government. It appears that some suspicion had been excited in the mind of the United States consul at Liverpool as to the Laurel; but the suspicion was that she was intended to become a Confederate cruiser or privateer. He had, as he said himself, no evidence, and he made no representation to any officer of the Government. Nor does there appear to have been any ground of belief or suspicion which would have warranted the customs officers in detaining or interfering with her. Of her real errand nothing whatever was known, until the receipt of intelligence from the British consul at Teneriffe. Her Majesty's Government is not aware that any claim has ever been made by the United States against Portugal, on the ground that the Shenandoah was converted into a ship. of war within Portuguese territory. 4 5 81. The Florida is the only vessel of which it is alleged that she was armed in British waters. The circumstances stated on this head in certain affidavits, which, more than two years afterward, were for the first time produced by the United States, and which the British Government has no means of verifying or disproving, were as follows: That before the Florida (then known as the Oreto) sailed from Nassau-which she did after having cleared as a merchant-steamer, and with a very small crew, hired in the port-a schooner called the Prince Alfred had put to sea, apparently with the design of running the blockade, and freighted with some guns and ammunition as cargo. There was nothing whatever to connect her with the Oreto, which was then lying in the har-bor, after having been released by the judge of the proper court from seizure under the charge previously made against her, but not substantiated, of violating the Foreign-Enlistment Act. There does not appear to have been any circumstance within the knowledge of the local authorities to direct special attention to the cargo of the Prince Alfred, to disclose her errand, or to furnish a reason for detaining her. No com 1 British Case, p. 123; Appendix to ditto, vol. i, p. 405. 4 2 British Case, pp. 136-141; Appendix to ditto, vol. i, pp. 477-490. Appendix to British Case, vol. i, pp. 492, 493. Appendix to Case of United States, vol. vi, p. 556. 5 British Case, p. 67; Appendix to ditto, vol. i, p. 85. |