gents, 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 towards them, which might naturally lead to, and would account for, a want of diligence bordering upon wilful negligence.

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 Government 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 fulfil all clear international duties towards 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 Ma

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 cannot presume to interpose an answer. We recognize that each independent Government must be the guardian of its own self-respect, 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.

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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 nave 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 principle of law, in the jurisprudence of all civilized nations, that 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."'

The general allegation that acts committed furtively, in remote and unfrequented parts of a coast, against the

1 British Counter-Case, pp. 78, 79.

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 furnishes 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 Barbadoes. 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."

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Mr. Montague Bernard acknowedged 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

1 American Case, p. 101.

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possible care." "It has not been usual in international questions to scrutinize narrowly the circumsstances 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 considera"tions are indeed plain and obvious, and the Govern"ment 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." "

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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 declined in June 1862 to ad"vise 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."

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2

Her Majesty's Government itself, when it framed its Case, had not arrived at the conclusion put forth in its Coun'er-Case. It then said: "A charge of injurious neg

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ligence on the part of a sovereign Government, in "the exercise of any of the powers of sovereignty

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

2 Brit. App, vol. IV, paper v, p. 31.