Table of contents.

I. Argument of the United States delivered to the tribunal of arbitration at Geneva, June 15, 1872.

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	Page.
I. Introduction:
Argument presented in accordance with provisions of the Treaty of Washington	5
The respective Cases and Documents	5
Counter Cases	5
The issues to be determined are now settled	6
II. The Controversy Submitted to Arbitration:
The Arbitrators already acquainted with the general nature of the facts	7
In suppressing an armed insurrection the United States exercised belligerent powers, and prevented insurgents from carrying on maritime war from their own resources	7
The right to do this unquestioned; other nations no parties to the conflict	8
Abstinence of intervention by another Power is not neutrality	8
It is a maintenance of previously existing relations	8
Other Powers have to decide in such case only whether they acquiesce in the exercise of belligerent powers by the Sovereign	8
Non-acquiescence is intervention	8
Questions arising beyond territorial limits of the Sovereign should be decided as they arise	8
Such course secures impartiality and, when justified by results, an equality between contending parties which resembles what is known as neutrality when exercised between rightful belligerents	9
This principle recognized by United States Supreme Court	9
Previous instances in point	9
Belligerent powers belong to the Sovereign of right; to the rebel of sufferance	10
Conferring belligerent rights on insurgents by Great Britain was an intervention	10
The Queen’s proclamation	10
was voluntary and anticipatory	10
was not called for by the relations between the Governments	10
had no justification	10
and changed the legal relations between Great Britain and the insurgents	11
Its effect upon the act of carrying on war on the high seas	11
Its effect upon commercial contracts	11
It was followed by systematic contributions in aid of the insurgents	11
The United States suffered great injuries	12
Which resulted from aid and assistance originating in British jurisdiction	12
This aid was organized, systematic, and official	13
Nature of the injuries inflicted on the United States	13
No nation but Great Britain instrumental in inflicting them	13
They form the subject of this arbitration	14
Provisions of the Treaty of Washington respecting the arbitration	14
Description of the claims	14
The Rules of the Treaty	15
The provisions of Article VII	15
Effect of an award	15
The measure of indemnity claimed	16
The claims preferred are national	16
The authority of the Tribunal absolute for their determination	16
Its award will be final	16
III. General Discussion of Questions of Law:
Contention of United States regarding failure of Great Britain to maintain neutrality	17
Responsibility resulting from such failure	18
Scope of the submission	18
Meaning of the language “all claims growing out of the acts of the cruisers”	18
Contentions of Great Britain	19
Proposed course of argument	19
General considerations of law	19
Great Britain guilty of culpable negligence, even when measuring its duties by the Foreign-Enlistment Act	19
International duties independent of municipal law	19
Defects of Foreign-Enlistment Act	19
They might have been remedied	20
These are not questions of neutrality	20
Great Britain legally responsible to United States	20
Sir R. Phillimore’s authority cited	20
Legal theory of United States respecting questions at issue	22
Right to make war	22
Right to give cause for war	22
What may be cause	22
Neutrality	22
War, what it is	22
Sales of arms and contraband of war	23
Dispatch of armed vessels	23
Responsibility of Sovereign for violation of neutrality	23
Constitutional inabilities cannot be pleaded in answer to a charge of such violation	23
Alleged constitutional inability of Great Britain examined	24
The prerogative power of the Crown	27
IV. Miscellaneous Considerations:
Many irrelevant matters in the British Case and Counter Case	28
Its treatment of the British Foreign-Enlistment Act of 1819	28
Its comparison between the British and American acts unjust	28
The Government of the United States has always been anxious to possess legislative powers sufficient for the performance of its duties as a neutral	29
Disinclination of Parliament to legislate on the subject	31
Legislation of other countries	32
Distinction between prevention and punishment	32
France	32
Italy	34
Switzerland	34
Brazil	35
Portugal	35
Spain	36
Belgium and Holland	36
Russia and Prussia	37
Denmark and Sweden	37
Comparative review	37
Conclusions	38
The history of the United States as a neutral a part of the British pleadings	38
Its relevancy denied	38
Neutrality toward Great Britain during President Washington’s administration	40
Expedition of Miranda	41
Revolt of Spanish-American colonies	42
War between Portugal and the Banda Oriental	44
Walker’s expedition	44
Cuba	44
Fenians	45
British enlistments during the Crimean War	46
The course of Great Britain as a belligerent toward neutrals	48
Orders in Council	48
Course toward France during the American Revolution	49
Course toward the Netherlands	49
General obligations of neutrals	49
John Laird as a witness. (Note)	51
Purchase of arms. (Note)	51
V.—Statement of Some General Facts Pertinent to the Inquiry and Applicable to Each Cruiser.
Résumé of facts stated in the American Case to establish the unfriendly animus of the British Government and people	52
The British response no denial	52
Rejoinder to the British response	53
Relevancy of the facts to the issue	53
Lord West bury	54
Mr. Montague Bernard	54
Earl Russell	54
The British Case	55
The facts stated in the American Case to be considered as proved	55
The proofs submitted with the American Case of the systematic and official use of British territory by the insurgents with the knowledge of Great Britain	55
These facts also to be taken as proved	56
VI.—The Florida	57
At Liverpool	57
Information by Mr. Adams	57
Action of Her Majesty’s Government	57
She was then evidently a man-of-war	58
Character of Mr. Adams’s representation	59
Action of the British Government	60
What might have been done	60
What actually was done	60
Registry of the Florida	61
Clearance	62
Résumé	62
Negligence of British officials	63
What might have been done under the Merchants’ Shipping-Act	64
Arrival at Nassau	66
Conduct of British officials there	66
Want of due diligence	66
Judicial proceedings at Nassau	67
Partial and unfriendly conduct of the Colonial Authorities	69
Seizure of the Florida	73
Trial and release; the criticisms on these proceedings in the American Case are sustained	75
Armament of the Florida	75
At Cardenas, at Mobile	76
At Nassau, January 25, 1863; receives coal, supplies, and recruitments	77
At Barbados, February 24, 1863; receives coal and repairs	77
At Pernambuco	77
At Bermuda, July 15, 1863; repairs and coals	77
At Brest; receives recruits and new machinery from Liverpool	78
At Martinique	78
At Bahia	79
Her tenders	79
VII.—The Alabama	80
Her adaptation to war is not disputed	80
The question to be decided	80
Mr. Adams gives information respecting the Alabama June 23, 1882	81
Referred to Law-Officers of the Crown	82
Their action upon it	82
Proceedings of Customs Authorities	83
Mr. Adams informed that the American Consul may submit evidence to the Collector at Liverpool	84
The Consul directed to furnish information to the Collector	85
He does so	85
Conduct of the Collector	86
He declines to act	87
Mr. Adams instructs the Consul to continue to collect proof	87
The Consul does so, and presents it to the Collector, with a request to seize the vessel	87
Law-Advisers of the Customs	88
Proof submitted to the Treasury July 22	89
Also to Earl Russell	89
Additional proof	89
Opinion of Mr. Collier	89
Presented with affidavits to Commissioners of Customs July 23	89
Action of the Board	89
Further evidence submitted by Mr. Adams	90
Her Majesty’s Government agree to keep a watch on the vessel	91
The Law-Officers think the vessel should be detained	91
Illness of Sir John Harding	91
Escape of the Alabama	92
Inefficiency of the subsequent proceedings	92
Earl Russell thinks this a scandal	93
Mr. Cobden’s views	93
Want of due diligence; in what it consisted	94
Armament from the Bahama	96
At Martinique	96
Destroys the Hatteras	97
At Jamaica, January 20, 1863; repairs and lands prisoners	97
At Rata Island	98
At Bahia	98
Is excluded from Brazilian ports for violation of sovereignty of Brazil	99
At Cape Town	99
At Simon’s Bay	99
The Tuscaloosa	100
At Simon’s Bay	101
At Singapore	101
At Simon’s Bay; coals and provisions	101
Is destroyed by the Kearsarge June 19, 1864	101
Reasons why Great Britain is responsible for acts of	102
VIII.—The Georgia	104
At Glasgow	104
Notoriety of the construction and purposes of the Georgia	104
Registry, clearance, and departure	107
The Alar	108
Armament of the Georgia	108
Mr. Adams gives information to Earl Russell	108
Insufficient action of Her Majesty’s Government	109
At Bahia	109
At Trinadi	109
At Simon’s Bay	109
At Cherbourg	110
At Liverpool	110
Sale	110
IX.—The Shenandoah	111
General review of facts establishing want of due diligence	111
Purchase of the Sea King	115
Her departure	115
Departure of the Laurel with her crew and armament	115
Armament of the Shenandoah	116
Arrives at Melbourne	117
Permission to coal and make repairs granted	118
Protest of the Consul	118
Unfriendly conduct of the Colony	118
Recruitment of men at Melbourne	119
The Colonial Authorities informed of the contemplated recruitments, and do not prevent them	120
Their inefficient proceedings	122
Further proof of recruiting furnished to the authorities	124
They parley with the commander of the Shenandoah in place of acting	125
Further information of contemplated recruitments	126
Refusal of the Colonial Authorities to act	127
Large recruitments of men; departure from Melbourne	128
Excessive repairs at Melbourne	130
Coaling there excessive	130
Contrast between the course of Brazilian and of British Authorities	133
At Liverpool	134
X.—The Sumter, the Nashville, the Retribution, the Tallahassee, and the Chickmauga	135
The Sumter	135
At Curaçoa, at Trinidad, at Martinique, at Cadiz	135– 136
At Gibraltar	136
At Liverpool	138
The Nashville at Bermuda	138
at Southampton	139
The Retribution	140
The Tallahassee	143
The Chickamauga	145
XI.—Consideration of the Duty of Great Britain, as Established and Recognized by the Treaty, in Regard to the Offending Vessels, and Its Failure to Fulfill them as to Each of Said Vessels
Propositions of law	146
Measure of international duty	146
Rules of the Treaty imperative	146
Application of the first Rule	146
Application of the second and third Rules	146
These Rules constitute the law of this controversy	147
Nothing admissible which diminishes their force	147
The obligation of Great Britain to observe these Rules was an international one	147
This obligation not affected by internal distribution of powers of British Government	147
Nor by the institutions or habits of the British people	147
Great Britain should have used seasonable, appropriate, and adequate means to preserve its neutrality	148
Which should have been available as soon as required	148
British sympathy with insurgents an element to be considered in preparing means	148
Other elements to be considered	148
The Means of fulfilling International Duty possessed by Great Britain	149
Her Majesty’s Government possessed full power for carrying out its selected course of action	149
The prerogative of the Crown	149
Its exercise during the Rebellion	149
Preventive power inseparable from the idea of executive power	151
Peculiar advantages of Her Majesty’s Government for the exercise of executive power	152
The duty of Great Britain in its treatment of the offending vessels after their first illegal outfit and escape from British ports	152
The privilege of exterritoriality accorded to a vessel of war is political and discretionary	152
It should not be acceded to a belligerent not recognized as a political Power	153
The only remedy against such belligerent in a case like the present is the remedy against the vessels themselves	153
Great Britain ought, therefore, to have seized the vessels	153
Due diligence, as required by the three Rules of the Treaty and the principles of international law not inconsistent therewith	154
After proof of hostile acts on neutral territory the burden of proof is on the neutral to show due diligence to prevent them	154
Diligence not a technical word	154
“Due” implies seasonableness, appropriateness, and adequateness	155
Objections to British definition of the term	155
Judicial definitions by British and American Courts	156
The United States do not desire a severe construction	157
They do not propose to become guarantors of their people	157
The Arbitrators the judges of what constitutes due diligence	157
XII.—The Failure of Great Britain to Fulfill Its Duties, as Established and Recognized by the Treaty, Considered Upon the Facts	159
Considerations of general application	159
The vessels concerning whose acts the contention is	159
Failure of Great Britain to fulfill its obligations	159
Negligence in obtaining information	159
No general means of immediate action provided	160
No general instructions to maintain vigilance	160
No officers charged with instituting and maintaining proceedings	160
No steps taken to break up the hostile system	160
The idea of an international duty toward the United States rejected	161
The obligations of Great Britain were independent of steps taken by officers of the United States in Great Britain	161
The Government of the United States always earnest to maintain its duties as a neutral	161
Absence of such earnestness on the part of Great Britain a license for the acts of hostility complained of	162
Failure to ascertain extent of statutory and prerogative powers	163
Failure to exercise the Royal prerogative	165
The Foreign-Enlistment Act was an insufficient means for performing international duties, and its efficacy was diminished by judicial construction and official requirements	166
Contract between this act and the American Statute as construed and administered	167
British reliance upon the Foreign-Enlistment Act a failure of due diligence	172
The neglect to amend the Foreign-Enlistment Act a failure of due diligence	173
Contrast between the course of Great Britain and the course of the United States in these respects	173
Failure in due diligence after the escape of the cruisers	175
In not detaining offending cruisers when again in British ports	175
This obligation not determined by commissioning a cruiser	176
In not excluding escaped cruisers from British ports	176
The representations to insurgent agents respecting these cruisers were so long delayed and so feeble as to amount to want of due diligence	178
The British course in these respects was voluntary	181
The exclusion of prizes from British ports was no benefit to the United States	181
The responsibility of Great Britain for these failures in due diligence continued until the end of the career of the cruisers	182
No evidence of the exercise of due diligence submitted by Great Britain	182
What vessels are under the jurisdiction of the Tribunal	185
XIII. Nature and Amount of Damages Claimed by the United States.
1. Prefatory considerations	186
General conclusions	186
Great Britain responsible for the acts of the cruisers	186
Measure of liability considered	187
Claims of losses set forth in the American Case	187
These claims all comprehended in the terms of the Treaty	187
2. Question of jurisdiction	188
Great Britain contends that the claims styled “Indirect” are not within the scope of the Arbitration	188
The term “indirect” not found in the Treaty	188
Rejoinder of the United States to the British assumption	188
“Indirect,” as used in this controversy, is equivalent to “national”	188
The word “indirect,” used in the negotiations which resulted in the Treaty	189
Used in the same sense in this discussion	189
What claims are within the jurisdiction of the Tribunal	189
Résumé of negotiations respecting Alabama Claims	189
Mr. Adams, November, 1862, asks “redress for private and national injuries”	189
Liability denied by Great Britain	189
United States refuse to relinquish their claims	190
Many claims lodged during the war, but discussion deferred	190
Reasons for calling all, the claims Alabama Claims	190
In April, 1865, the United States renew discussion	190
Responsibility of Great Britain re-asserted	191
Denial of liability	191
May, 1865, the United States classify claims as “direct” and “indirect,” and demand reparation for all	191
Great Britain denies liability for indirect and refuses arbitration for direct claims	191
Lord Russell the author of the term “Alabama Claims”	192
This term well known in October, 1866	192
Lord Russell proposes to let bygones be bygones	192
The United States decline to waive any of their claims	192
The Stanley-Johnson Convention	193
The Johnson-Clarendon Convention	193
Lord Granville thinks it admits unlimited argument as to the extent of the Alabama Claims	193
This Convention not acceptable to the United States	194
Mr. Johnson informs Lord Clarendon that the United States have claims of, their own on Great Britain	194
Sir Edward Thornton advises Lord Clarendon that the Convention is rejected because it is thought that it does not include the indirect claims	194
Mr. Motley informs Lord Clarendon that the United States do not abandon the national claims	195
And that the Johnson-Clarendon Convention did not afford sufficient redress for the national injuries	195
The indirect claims as considered by Lord Clarendon	195
President’s message to Congress December, 1869	196
Same in 1870	196
In January, 1871, the words “Alabama Claims” were understood to include all claims of United States against Great Britain, both national and individual	196
Negotiations opened at Washington	196
Reasons which induced those negotiations	196
Preliminary proposals and correspondence	197
The proposed commission to treat of the “Alabama Claims”	197
United States Commissioners appointed and confirmed on the correspondence, and their powders limited by it	197
“The Alabama Claims,” the American Commissioners state their understanding of the meaning of those words	198
They propose a mode of ascertaining the amount of the damages	199
And that payment thereof should be made	199
This would have been an amicable settlement	199
But no waiver of any class of claims	199
The proposal declined	199
Without exception to the definition of the term “Alabama Claims”	199
A reference proposed by Great Britain	200
Unwillingly accepted by the United States	200
The Treaty of Washington	200
Meaning of the words “amicable settlement”	200
Cliams for reference under the Treaty	200
The same which were described in preliminary correspondence	200
No waiver of indirect claims	200
Powers of the Tribunal	201
Power to assess damages not limited	201
Views of Mr. Bernard	201
Twelfth article of the Treaty	201
Sir Stafford Northcote	202
Lord Ripon	202
Mr. Bernard	202
Evidence from Protocol II	202
Debate in Parliament—Lord Granville	202
Lord Cairns says the indirect claims included in the Treaty	203
His construction not questioned	203
Lord Ripon’s views	203
Sir Stafford Northcote	204
Conclusions	205
The American Case stated the claims in the language of the Joint High Commissioners	205
Long delay in objecting to it by Great Britain	206
Supposed concessions to United States in the Treats	206
The Rules	206
Expression of regret	206
Fenians	206
Conclusions	207
Lord Granville’s speech	208
Explanation of the misunderstanding	209
Résumé	209
Arbitration takes the place of war	210
The Tribunal the judge of its own powers	210
Pradier Fodéré	210
Calvo	210
Mr. Montague Bernard	211
3. Measure of damages	212
Rules for measuring damages	212
Severity to be shown to the wrong-doer in claims founded on torts	212
The animus of the wrong-doer an element of damages	212
The relation between the injury and its cause	213
Whether the natural result of the wrong-doer’s act	213
Damages should be an indemnity	215
Whether so or not a question of fact	215
Application of principles	215
As to personal injuries	215
As to property of the United States destroyed	215
As to property destroyed and injuries inflicted upon citizens of the United States	215
As to expenses in pursuit of the cruisers	216
Alleged condonement by the United States	218
The arbitration substitutes damages in the place of reparation by war	218
Reply to Arguments in the British Counter Case	218
Indemnity should follow injury	220
Award of a sum in gross	220
It should include interest	220
Case of the Canada	220
Award under the Treaty of Ghent	220
Award under the Jay Treaty	220
Contingent reference to assessors	220
Claims of private persons	221
The indirect claims	221
Enhanced rates of insurance	221
Transfer of United States commerce to British flag	221
Prolongation of the war	221
Whether too remote for consideration to be determined by the Tribunal	222
Views of Mr. Pradier Fodéré	222
General considerations	222
The United States do not desire extreme damages	223
The jurisdiction of the question belongs to the Tribunal	223
Without an adjudication upon it there will not be a full settlement of all differences	224
Conclusion	224
Note A.—Observations on Certain Special Criticisms in the British Counter Case on the Case of the United States	226
1. The British-Foreign Enlistment Acts	226
2. American neutrality in 1793–’94	227
3. The United States and Portugal	228
4. Nassau in December, 1861, and January, 1862	229
Note B.—Extracts from Various Debates in the Parliament of Great Britain Referred to in the Foregoing Argument	231
1. The Foreign-Enlistment Act of July 3, 1819	231
2. Lord Althorp’s motion for the repeal of the Foreign-Enlistment Act	234
3. The affair at Terceira	234
4. The Foreign-Enlistment Act of August 9, 1870	236
5. The Treaty of Washington	239
Note C.—Memorandum of Correspondence and Documents Rerating to the Amendment of the English Foreign-Enlistment Act, 1861–’71	242
Note D.—Consideration of the Claims Arising in the Destruction of Vessels and Property by the Several Cruisers	248
Detailed statements have been presented	248
With the evidence furnished by the claimants to support them	248
The United States desire an award of a sum in gross on the evidence presented	248
British criticisms on this evidence	248
The answer to such criticisms	249
Injustice of the British estimates of the value of the vessels destroyed	249
Prices obtained under forced sales no criterion	250
Whaling and fishing vessels	250
Letter of Mr. Crapo	250
Property destroyed	251
How proved	251
Oil or fish destroyed on whalers or fishing-vessels	251
Personal effects	252
Claims of insurance companies	252
No double claims supported by the United States	252
Charter-parties or freights	253
Loss of profits	253
A part of the damages in actions in tort	253
Breaking up voyages of whaling-vessels	253
Claims of the officers and crews	254

II. Argument or summary showing the points and referring to the evidence relied upon by the government of Her Britannic Majesty in answer to the claims of the United States: Presented to the tribunal of arbitration constituted under Article I of the treaty concluded at Washington on the 8th May, 1871, between Her Britannic Majesty and the United States of America.

[Page XII]

Scope of the Arbitration	259
Course of proceeding to be followed by the Tribunal	259
Vessels to which the claims of the United States relate	260
Nature of the Argument on the part of Great Britain	263
The Sumter, Nashville, Tallahassee, Chickamauga, and Retribution	263
The Clarence, Tacony, Archer, and Tuscaloosa	264
The Alabama, Florida, Georgia, and Shenandoah	264
Substance of charges	264
General principles of International Law in force when the facts occurred	265
The three Rules of the Treaty of Washington	267
Meaning of the words “reasonable ground to believe”	268
“Due diligence”	268
British law and powers of the Executive in Great Britain	269
Facts which must be proved before an award can be made against Great Britain	273
The Florida	274
The Alabama	276
The Georgia	281
The Shenandoah	282
Conclusion as to the Florida, Alabama, Georgia, and Shenandoah	283
General course pursued by the British Government in regard to the representations made by Mr. Adams	283
Charge that the armament of certain vessels was procured from Great Britain	283
Charge that the crews of certain vessels were partly composed of British subjects	288
Charge as to Confederate Agencies in Great Britain for war purposes	290
Complaint that Confederate cruisers visiting British ports were not seized and detained	295
Complaint as to hospitalities accorded to Confederate cruisers in British ports	303
Review of the grounds on which the claims of the United States rest	303
Character of the claims of the United States	304
Observations on the principle and measure of compensation	304
Conclusion	307
Annex A. Communications between the British and American Governments during the Civil War, with Reference to the State of the Neutrality Laws of Great Britain	309
Annex B. French Translation of the Three Rules in Article VI of the Treaty of Washington	313
Annex C. Report of the Committee Appointed by the Board of Trade	315
Class A	321
Class B	323
Class C	326
Class D	330
Class E, F.	332
Correction and combination of allowances	335
Summary	338
I. As to the vessels and outfits	339
II. As to freights and earnings	339
III. As to the cargoes	339
IV. As to claims for damages and personal effects	340
V. Result	340
Notes	341
Table No. 1. Showing progressive increase in the amount of claims for losses incurred through the respective cruisers as stated at different periods	340
Table No. 2. Showing the result of the corrections and re-appropriations of the claims and the corresponding allowances in summaries Nos. 1, 2, and 3, of First Report, in accordance with remarks in present Report	343
Table No. 3. Showing, under respective divisions of classes, interest, and cruisers, the claims advanced under the Revised Statement, together with the allowances to meet them	346
Table No. 4. Showing the vessels captured by the Alabama, the valuation the captors placed on each vessel, the allowance deemed adequate for each, &c	348
Annex D. Further, Note on the Claim presented by the Government of the United States for Expenditure alleged to have been incurred in the Pursuit and Capture of Confederate Cruisers. Efforts made to capture Confederate Cruisers	350
Alabama	359
Florida	354
Georgia	355
Shenandoah	359
Inadequacy and want of concert of United States naval force abroad, &c	359
Errors in the synopsis of orders	360
Admiral Wilkes’s flying squadron	362
Miscellaneous cases	363
Vanderbilt	363
San Jacinto	364
Augusta	364
Dacetah	364
Niagara	364
Money claims—further abatements suggested	365
Conclusions	370

[Page XIII]

III. Supplementary statements or arguments made by the respective agents or counsel subsequently to filing the arguments according to the provisions of the treaty.

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I.—Statement of Sir Roundell Palmer, made at the Seventh Conference, on the 27th June, 1872	375
Points upon which he desires further argument	375
II.—Reply of the Counsel of the United States in Response to the foregoing Statement of Sir Roundell Palmer	376
Reasons why further argument should not he ordered at this stage of the proceedings	376
III.—Argument of Sir Roundell Palmer on the Question of “Due Diligence.” “The Effect of Commissions upon the Insurgent Cruisers,” and “The Supplies of Coal to such Cruisers in British Ports”	385
1. On the question of Due Diligence generally considered	385
On the sources of the obligation	385
Rules and principles of International Law	385
Express or implied engagements of Great Britain	387
Effect of prohibitory municipal laws	388
The three Rules of the Treaty of Washington	389
General principles for finding what diligence is due	390
The maxims cited by the United States from Sir R. Phillemore	390
For what purposes Great Britain refers to her municipal laws	393
Doctrine of Tetens	393
Influence upon the question of diligence of the different forms of National Governments	394
Objections to any theory of the diligence due from neutral Governments which involves a universal hypothesis of arbitrary power	394
Argument of the United States as to the necessity of a reliance on prerogative	395
Argument as to prerogative powers belonging to the British Crown	395
True doctrine as to powers of the Crown	397
American view of an a prion obligation	398
The British Crown has power to use the forces of the realm to stop acts of war within British territority	399
The assertion that Great Britain relies on punitive and not preventive law disproved	400
Preventive power of British law explained	400
The doubtful points as to the construction of the British Foreign-Enlistment Act never affected the diligence of the British Government	401
Baron Bramwell’s view of the international as distinct from municipal obligation agreed with that of the American Attorney-General in 1841	402
On the arguments as to due diligence derived by the United States from foreign laws	402
On the comparison made by the United States between their own laws and British laws	405
Examination of the preventive powers of the American Government under their acts of Congress for the preservation of neutrality	405
Testimonies of Air. Bemis and Mr. Seward on this subject	409
Argument from the Foreign-Enlistment Act of 1870	409
Illustrations of the doctrine of due diligence from the history of the United States	410
Arguments of the United States from suggested defects in the administrative machinery of British law, and from the evidence required by the British Government	410
Inconsistency of the Rules of the Treaty with the requirement of diligence to prevent where there were not reasonable grounds of belief	412
The British Government took active and spontaneous measures to acquire all proper information and to prevent breaches of the law	412
They followed up all information received by proper inquiries	413
Necessity and propriety of seeking evidence from those who give information	415
Mr. Jefferson’s letter of September 5, 1793	415
Onus imposed on British claimants against the United States under the Treaty of 1794	415
Uniform reference of the Executive Authorities of the United States in similar cases to legal procedure and the necessity for legal evidence	415
Of the suggestion that the belief of the consuls of the United States in British ports should be treated as sufficient prima-facie evidence	419
The preventive efficacy of the American law tried by the test of practical results	420
The general result proves that many failures may happen, without want of due diligence, from causes for which Governments cannot be held responsible	422
Attempt of the United States to change the onus probandi in this controversy	423
It is a transgression of the Rules of the Treaty	424
The law of nations does not justify this attempt.	424
The decision in the case of the Elizabeth against it	424
Special questions remaining to be considered	425
The alleged duty of pursuit. The Terceira expedition	426
2. The effect of the commissions of the Confederate ships of war on their entrance into British ports	426
The true construction of the first Rule of the Treaty	426
The privileges of public ships of war in neutral ports	427
The case of the Exchange	428
Other authorities	428
The Rule cannot require an act wrongful by international law	429
There is no rule obliging a neutral to exclude from his ports ships of this description	430
In any view the latter part of Rule I cannot apply to the Georgia or the Shenandoah	430
The distinction suggested by the United States between ships of war of recognized nations and ships of a non-recognized State	431
All the ships in question were duly commissioned ships of war	432
3. On supplies of coal to Confederate vessels in British ports	433
Both parties in the war equally received such supplies	433
Such supplies are not within the rule as to not using neutral territory as a base of operations	433
What is meant by the words “a base of naval operations”	434
What is not meant by those words	435
Consequences of a lax use of the phrase	435
Effect of the addition of the words “renewal or augmentation of military supplies or arms”	435
Doctrine of Chancellor Kent	435
President Washington’s rules and other authorities	436
Acts of Congress of 1794 and 1818	436
British Foreign-Enlistment Act of 1819	436
Universal understanding and practice	437
Intention of the second Rule of the Treaty on this point	437
British regulations of January 31, 1862	437
4. Principles of construction applicable to the Rules of the Treaty.
Importance of the second and third questions, as to the principles of construction applicable to the three Rules	438
Rules for the interpretation of public conventions and treaties	438
Applications of these principles to the interpretation of the three Rules as to the points in controversy	439
Influence on the construction of the retrospective terms of the agreement	440
The admitted intention of both parties as to the second Rule	441
Influence upon the construction of the agreement to propose the three Rules for general adoption to other maritime nations	441
IV.—Argument of Mr. Evarts in Reply to the Special Argument of Sir Roundell Palmer	442
Scope of the discussion	442
Due diligence	443
The Rules of the Treaty the law of this Case	443
Sir R. Palmer’s attempt to disparage the Rules examined	443
How far the Tribunal may resort to the Rules of International Law	446
Sir R. Palmer’s principles for the construction of Treaties examined	446
Effect of a commission	448
United States construction of the first Rule	448
Effect of the words “reasonable ground to believe”	450
The rules of law respecting the effect of a commission	451
Extent of the right of exterritoriality granted to ships of war	451
Recognition of belligerency not a recognition of sovereignty	452
Application of the principles	452
Acts done in violation of neutrality are hostile acts	454
The neutral whose neutrality has been violated is under no obligation of comity to the violator	455
Authorities to show that the construction in neutral territories of a ship intended to carry on war against a belligerent is forbidden by the law of nations	455
The applicability of the rule to the Georgia and the Shenandoah	458
The question of coaling is a branch of the greater question of the use of British ports as bases of hostile operations	458
The doctrine of asylum considered	459
Analogy between the duties of a neutral on laud and his duties at sea	459
Limitation of the right of commercial dealings in contraband of war	460
Use of a neutral port as a base of hostile operations; what it is	460
In the case of the Nashville	461
In the case of the Shenandoah	462
The question of the use of the neutral port as a base of hostile operations being established, there remains the inquiry whether the neutral did or did not exercise due diligence to prevent it	464
Such proceedings are not mere dealings in contraband of war	465
Statement of the British argument on this point	469
The arming and equipping the cruisers forbidden by the law of nations	471
They should therefore have been disarmed when they came again within British ports	472
The construction of the Rules of the Treaty	472
Review of Sir R. Palmer’s criticisms upon the Argument of the United States	473
The prerogative of the Crown	474
Preventive and punitive powers of each Government	477
The failure of Great Britain to originate investigations or proceedings	479
The due diligence required by the Rules is a diligence to prevent a hostile act	480
Comparison between the statutes of the two nations	481
The burden of proof	482
The Terceira affair	483
Conclusion	484
V.—Argument of Mr. Cushing in Reply to the Special Argument of Sir Roundell Palmer	486
Due diligence	487
A theoretical discussion not wanted	487
Views of Sir Robert Phillimore	489
Views of Sir Roundell Palmer in the case of Lairds’ rams	491
Definition of due diligence	494
Powers of the Crown	495
Obligations imposed by international law as distinguished from municipal law	496
Constitutional form of the British Government	496
Case of the Russian ships	499
Comparative laws of other countries	501
The laws of the United States examined	504
Jurisdiction of the Tribunal	508
VI.—Reply of Mr. Waite to the Argument of Sir Roundell Palmer, upon the Special Question as to Supplies of Coal in British ports to Confederate Ships	513
A base of operations essential to naval warfare	513
What it is	513
It should not be in neutral territory	513
The insurgents had no such base within their own territory	514
Great Britain knew this	514
The advantages of these facts to the United States	514
Efforts of the insurgents to obtain bases of operations in neutral territory	515
Toleration of use equivalent to permission	515
Toleration implies knowledge	515
Great Britain had reasonable ground to believe that the insurgents intended to use its ports	515
Their effective vessels of war came from Great Britain	515
When obtained they were useless without a base of operations	516
They might have been excluded from British ports	516
This would have prevented the injuries which followed	516
The United States requested Great Britain to prevent this abuse of its territory	517
Great Britain refused to prevent it	517
Great Britain encouraged the use of its ports by the insurgents for repairs and for obtaining provisions and coal	518
All this constituted a violation of neutrality which entailed responsibility	519
VII.—Argument of Sir Roundell Palmer on the Question of the Recruitment of Men for the Shenandoah at Melbourne	520
VIII.—Observations addressed to the Tribunal by Mr. Cushing, in the name of the Counsel of the United States, on the 21st August, 1872, and Memorandum as to the Enlistments for the Shenandoah at Melbourne	552
IX.—Argument of Sir Roundell Palmer on the Special Question as to the Legal Effect of the entrance of the Florida into the port of Mobile, or the responsibility, if any, of Great Britain for that ship	541
X.—Reply of the Counsel of the United States to the Argument of Her Britannic Majesty’s Counsel on the Special Question of the Legal Effect, if any, of the entry of the Florida into the port of Mobile, after leaving the Bahamas, and before making any captures	546
XI.—Argument of Sir Roundell Palmer on the Claim of the United States for Interest by way of Damages	550
XII.—Reply on the part of the United States to the Argument of Her Britannic Majesty’s Counsel on the Allowance of Interest in the computation of Indemnity under the Treaty of Washington	568
XIII.—Comparative Tables presented by the Agent of the United States on the 19th of August, 1872, in compliance with the request of the Tribunal	579
XIV.—Tables presented by the Agent of Her Britannic Majesty on the 19th of August, 1872, in compliance with the request of the Tribunal	610
XV.—Reply of the Agent of the United States to the new matter introduced by the Agent of Her Britannic Majesty on the call of the Tribunal for elucidation in respect to the Tables presented by the two Governments	633
XVI.—A Note on some Observations presented by Mr. Bancroft Davis on the 29th August	638