V.—STATEMENT OF SOME GENERAL FACTS PERTINENT TO THE INQUIRY, AND APPLICABLE TO EACH CRUISER.

The United States in their Case, which was delivered to the Tribunal of Arbitration on the 15th day of December last, presented stated in the Ameri- evidence to establish the following facts:

Resume of facts

can Case to estab

mus of British gov.

lish unfriendly ani- 1. That before the outbreak of the insurrection in the ernment and people. United States, Her Majesty's Government invited the Government of the French Emperor to act jointly with the British Government in the anticipated rising of the insurgents.

2. That before an armed collision had taken place, Her Majesty's Government determined to recognize the insurgents as belligerents, whenever the insurrection should break out.

3. That, in accordance with the previous invitation to the French Government, Her Majesty's Government announced its decision so to recognize the insurgents, and invited France to do the same, as soon as it heard of the outbreak of the insurrection, and before it had official information of the steps which the Government of the United States proposed to take for the suppression of the same.

4. That after the announcement of this decision was made, and before the Queen's Proclamation was issued in accordance therewith, the attention of Her Majesty's Government was called in both houses of Parliament to results which it was supposed would follow the recognition of the insurgents as belligerents, viz, that they would be entitled to carry on war on the ocean, and to issue letters-of-marque.

5. That, simultaneously with the invitation to the French Government to join in the recognition of the insurgents as belligerents, that Government was invited to join Her Majesty's Government in an effort to obtain from the insurgents certain advantages to British and French commerce, on the condition, held out in advance, that the right of the insurgents to issue letters-of-marque should not be questioned.

6. That these steps were taken clandestinely, without the knowledge of the United States; and that the desired advantages were obtained, and the right of the insurgents to issue letters-of-marque was recognized.

7. That these unfriendly acts, committed before or soon after the outbreak of the insurrection, were supplemented by other unfriendly acts injurious to the United States and partial toward the insurgents.

8. That they were also supplemented by public speeches made by various members of Her Majesty's Government, at various times, throughout the war, showing that the speakers had personal sympathies with the insurgents, and had active desires that they should succeed in their attempts to defeat the forces of the United States.

The United States further insisted in their Case that the facts which they had so established showed an unfriendly feeling toward them, which might naturally lead to, and would account for, a want of diligence bordering upon willful negligence.

The British response no denial.

Her Majesty's Government has met this part of the Case of the United States by the following averments:

To the second chapter of the American Case, which imputes to the British govern

ment hostile motives and even insincere neutrality, no reply whatever will be offered in this Counter Case. The British Government distinctly refuses to enter upon the discussion on these charges. First, because it would be inconsistent with the self-respect which every government is bound to feel; secondly, because the matter in dispute is action, and not motive, and therefore the discussion is irrelevant; thirdly, because to reply and to enter upon a retaliatory exposition, must tend to inflame the controversy, which in the whole tone and tenor of its Case the British Government has shown its desire to appease; and lastly, with respect to the charges themselves, if they were of any weight or value, the British Government would still contend that the proper reply to them was to be found in the proof which it has supplied that its proceedings have throughout, in all points, been governed by a desire, not only to fulfill all clear international duties toward the Government of the United States, but likewise, when an opportunity was offered, even to go beyond what could have been demanded of it as of right, in order to obviate all possibility of cavil against its conduct.

Her Majesty's Government states, in substance, that for three given reasons no answer will be made to the charges made by the United States; and this statement is followed by an averment that "the proof which Her Majesty's Government has supplied" "rebuts the charges which the United States contend to have established." We have but few remarks to make in respect to these conflicting averments.

To the statement that to reply to the charges would be inconsistent with the self-respect of Her Majesty's Government, we can- Rejoinder to the not presume to interpose an answer. We recognize that British response. each independent Government must be the guardian of its own selfrespect, and must decide for itself whether the attempt to answer or to explain such facts as were contained in the Case of the United States is inconsistent with that self-respect.

To the averment that such a reply would tend to inflame the controversy, we venture to submit to the arbitrators that it is not easy to see how a friendly explanation of acts which, when committed, naturally tended to excite the present controversy, will assist in continuing or increasing the feeling which those acts caused.

To the assertion that a retaliatory exposition would tend to inflame the controversy, we reply, denying that any retaliatory exposition can be made by Her Majesty's Government. The tribunal will observe what the "exposition" of the United States has been. It has been charged and proved that Her Majesty's Government collectively committed acts, and that the members of that Government individually made speeches, that revealed an active feeling of unfriendliness to the United States, which would lead to and account for the acts of which complaint is made before this Tribunal. How is it possible to make "a retaliatory exposition of" such charges? Great Britain is not here complaining of any act of the United States. What the Government of the United States may have done, or what the individual members of that Government may have said, in respect to the Government of Great Britain, or in respect to the members thereof, touching any of the occurrences of the war which may be brought to the notice of the tribunal, cannot become material or relevant here.

If Her Majesty's Government conceives that it is in its power to present here proof of acts or of sayings on the part of the Government of the United States, or of the members thereof, which ought properly to be taken into consideration by the Tribunal, the charges should be openly made, rather than insinuated. We feel confident that no such proof can be found.

The averment that the discussion is irrelevant has been received with surprise. We had supposed it to be a fundamental princi- Relevancy of the ple of law, in the jurisprudence of all civilized nations, that facts to the issue. the motives which prompt an act affect its character; and that, when it

is attempted to charge a principal for the acts of a subordinate, it becomes not only relevant but material to show what influences the former has brought to bear upon the latter.

It is proved, for instance, in the Case of the United States, that the Florida was armed at Green Cay in British waters. Her Majesty's Government replies "that over such a dominion as the Bahamas, no Government could reasonably be expected to exert such a control as to prevent the possibility that acts of this kind might be furtively done in some part of its shores or waters." 1

The general allegation that acts committed furtively, in remote and unfrequented parts of a coast, against the wishes of a Government, and in spite of well-intended, active efforts to prevent them, are not acts over which that Government could reasonably be expected to exert a control, commands the assent of the United States. They would not themselves consent to be held responsible for the results of such acts. It happens, however, that each Government has furnished the Arbitrators with proof that there was a controlling bias at Nassau in favor of the insurgents and against the United States; and Her Majesty's Government furnished the additional proof that this bias resulted from a similar bias which was supposed to exist in the Government and people of England. It certainly must be relevant for the United States to show that such a bias did actually exist in England; that it was openly shown by different members of Her Majesty's Government; and that their views could not but have been known, not only to the colonial authorities at Nassau, but also to the British subordinates at Liverpool, Glasgow, Melbourne, Bermuda, and the Barbados. Whether the acts or omissions of their subordinates which resulted disastrously to the United States were influenced by the known wishes of their superiors, and whether the expression of those wishes was not therefore an absence of due diligence, is a legitimate subject for argument by the Counsel of the United States.

Lord Westbury acknowledged the relevancy of such evidence when he said, "the animus with which the neutral acted is the only true criterion." 2

Lord Westbury.

Mr. Montague Bernard.

Mr. Montague Bernard acknowledged it when he said, "injurious remissness or injurious inattention on the part of a Government is not merely something less than the greatest possible promptitude or the greatest possible care." "It has not been usual in international questions to scrutinize narrowly the circumstances from which negligence might be inferred and complaints of actual negligence have been urged but rarely, and with a view rather to security for the future than to reparation for the past. These considerations are indeed plain and obvious, and the Government of the United States is probably not insensible to them, since it is at pains to insist that the neglect with which it charges the Government of Great Britain was gross,' 'inexcusable,' and 'extreme,' 'equivalent or approximate to evil intention."" 3 Earl Russell was of the same opinion when he said: "It appears to Her Majesty's Government that there are but two questions by which the claim of compensation could be tested. The one is: Have the British Government acted with due diligence, or in other words with good faith and honesty, in the maintenance of the neutrality they proclaimed? The other is, have the law-officers of the Crown properly understood the Foreign-Enlistment Act, when they de1 British Counter Case, pp. 78, 79.

Earl Russell.

2 Am. Case, p. 101.

3 Neutrality of Great Britain during the American Civil War, pp. 385, 387.

clined in June, 1862, to advise the detention and seizure of the Alabama, and on other occasions when they were asked to detain other ships building or fitting in British ports." 1

Her Majesty's Government itself, when it framed its Case, had not arrived at the conclusion put forth in its Counter Case. It The British Case.

then said:

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 the 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. 2

The facts stated in

to be considered as

The Counsel of the United States will therefore go into the discussion of the questions of fact as to the several vessels with the fact uncontroverted, that Her Majesty's Government and the the American Case individual members of it freely,repeatedly, and publicly gave proved. it to be understood that it was neither expected nor desired in the Cabinet at London, that the United States should succeed in averting the destruction of their nationality; and that these expectations and desires were known to all subordinates of Her Majesty's Government.

Case of the systema

British territory by

the knowledge of

The United States also presented with their Case evidence to show that, at the commencement of the insurrection, the insur- Proof submitted gents established on British soil administrative bureaus for with the American the purpose of making British soil and waters bases of hos- tic and official use of tile operations against the United States; and that from the insurgents, with these bureaus and through persons acting under their direc- Great Britain. tions, or in co-operation with them, the several vessels of whose acts they complain were either dispatched from Great Britain, or were supplied in British ports with the means of carrying on war against the United States. They further showed that the existence of these bureaus was brought to the knowledge of Her Majesty's Government and was justified by it.

Of a portion of this evidence, which Her Majesty's Government sees fit to style 66 a mass of confederate papers," the British Counter Case says: "of the authenticity of them, and of the manner in which they came into the possession of the United States, Her Britannic Majesty's Government has no knowledge whatever beyond what it derives from the above-mentioned statement, which it willingly accepts as true. Of the person by whom, and the circumstances under which, the letters were written, and the character and credibility of the writers, it (Her Majesty's government) knows nothing whatever. They are persons with whom this Government has nothing to do, and whose very existence was unknown to it; and it does not admit as evidence against Great Britain any statement which they may have made to those who employed them, or to one another." "It is not, indeed it could not, be pretended that the correspondence extracted from these papers was in any way known to the British Government. Nor has the Government of the United States furnished the Arbitrators with any means of judging whether the letters are authentic, or the facts stated in them true, or the persons whose names purport to be attached to them, (persons unknown to the British Government,) worthy of credit. Her Majesty's Government thinks it right to say that it attaches very little credit to them."

The Arbitrators may, therefore, assume, notwithstanding the averment on page 56, that Her Majesty's Government admits that the evidence referred to came into the possession of the United States by capture at Richmond, and that there is no serious question of the authenticity of the letters. They may also assume that there will be no serious question made as to the truth of the facts stated in those letters. It is true that Her Majesty's Government says that it attaches little credit to them. It is equally true that the United States attaches full faith to them. The Arbitrators will judge whether it is probable or improbable that these free and confidential letters do give correct accounts of the contemporaneous events which they describe. They will also judge whether those events are or are not relevant to the issue between the two Governments. The United States think that they are. If they are relevant the United States are justified in bringing them before the Tribunal, especially as it appears that Her Majesty's Government was several times informed of the illegal operations which the writers of these identical letters were carrying on from British soil at the time when the letters were written.

These facts also to

We, therefore, contend that we go into the discussion of the questions of fact, with the further general facts proved, that the ine taken as proved. surgents established and maintained unmolested throughout the insurrection administrative bureaus on British soil, by means of which the several cruisers were dispatched from British ports, or were enabled to make them the basis of hostile operations against the United States, and that Her Majesty's Government was cognizant of it.