more successful? If he could, why is the penalty of his negligence to be paid by the British nation?

Up to this point, then, it is clear that there is no reasonable ground for the charges brought by the United States against Great Britain. If those charges are to be supported in any way, they must find their only support in what was done, or omitted to be done, afterward. That the question whether the evidence was credible and sufficient to sustain a seizure, was one on which the British government had a right, before acting, to consult its official legal advisers, cannot be denied. It was clearly and eminently such a question. Nor does it admit of denial that the evidence was actually referred, as soon as it was received from time to time, by the government to its advisers, for their opinion; nor that, if any reasonable doubt existed, the government and its advisers were justified in taking reasonable time for consideration.

The charge of gross negligence, then, resolves itself, when tested by examination, into this and no more-that the evidence, not having been delivered till within a few days of the sailing of the ship, and then in successive installments sent almost from day to day, a little more time than may now perhaps be thought to have been absolutely necessary was consumed in obtaining the advice and forming the conclusion on which the government ultimately acted.

A circumstance has been already mentioned, of which Mr. Adams was informed at the time, as having occasioned some little delay.1 [86] Nor ought it to be forgotten that the sole *facts which were

alleged, and as to which evidence was offered, and for preventing which Her Majesty's government was solicited to interfere, were the fitting out for sea in the neutral port of a vessel specially adapted by her construction for war, and built as a commercial transaction to the order of an agent of a belligerent, and her apprehended departure, unarmed, for an unknown destination, which might be a port of the Confederate States. Of arrangements for arming her nothing was known to the officials of the United States, and nothing was brought to the knowl edge of Her Majesty's government; and they are now informed by her builders, Messrs. Laird, (who would, if necessary, give evidence to that effect before the arbitrators,) that they also were entirely ignorant of those arrangements, and that they believed the vessel to be intended to run the blockade. In the opinion of the government and its advisers, the adaptation of this vessel for war, with a view to her employment.in the service of the Confederate States, would, if proved, have been a breach of the foreign-enlistment act; but this was not established by authority; it was a point on which high legal opinions were known to differ; and it was the more necessary that the evidence should be clear. When the matter is reduced to this point, we see that is one upon which an adverse judgment cannot reasonably be founded by a court of international arbitration. Whether the evidence furnished was suffi cient; at what time it became sufficient, (taking into account the principles of English law, by which the government and its advisers were, bound;) and whether the conclusion at which the government arrived was or was not deferred a little too long by a reasonable doubt or an accidental delay, are questions as to which such a court might, per haps, find it not easy to form a clear and decisive opinion. The British government conceives, however, that it is not upon grounds such as these that a grave charge of neglect of international duty ought, when raised, to be decided. The standard of international obligation which

The illness of the Queen's advocate; British Case, p. 118.

a decision adverse to Great Britain on such grounds would assume, has never heretofore been applied to or acknowledged by any government; and it needs no argument to show that the establishment of it would be a matter of serious consequence, not to maritime states alone, but to the general peace and tranquillity of nations.

The same observations apply with still greater force to the complaints made by the United States of some petty mistake which possibly may have been made, or some small defect of promptitude in decision or action which may possibly have been exhibited by subordinate officers at Liverpool after the departure of the vessel. At no time after she sailed was there more than a bare possibility that by the utmost promptitude, aided by good fortune, she might have been seized while in British waters. It appears incredible that the United States should mean seriously to contend that, because a subordinate revenue officer hesitates when in doubt to assume a responsibility, or writes to his superior by post instead of communicating by telegraph, a grave international injury has been perpetrated and liabilities incurred such as they now seek to establish. It is evident that, on such complaints, were they fit to be entertained, no just conclusion could be formed without a minute knowledge of the attendant circumstances, such as is now impossible to the arbitrators and unattainable even by Her Majesty's government. How little support is to be found in the history of the United States themselves for the application of so rigorous a standard has been sufficiently shown in an earlier portion of this counter case. Indeed, we need not go beyond the facts immediately before us. Is the Government of the United States willing to be charged with gross negligence on the ground that the captain of the Tuscarora was lying idle at Southampton or sailing in St. George's Channel when he ought to have been off the Mersey?

Her Majesty's government forbear, therefore, to detain the arbitrators by an examination of the minor inaccuracies which occur in this part of the case, and will refer only to one or two of them. It is said that the collector knew on the 30th of an "admitted recruitment" of men, and that the commissioners of customs knew of it on the following day and "took no notice" of it. There was, however, no admitted recruitment, in the sense of an unlawful enlistment of men, in the port of Liverpool. There was nothing to show that the men were not hired for the mere purpose of navigating an unarmed vessel; and it has since proved that they really were so. No enlistment took place until after the vessel reached the Azores, when some agreed to take service and Some refused. If, therefore, they had been taken before a magistrate at Liverpool, they must have been released. It is said that the revenue officers at Liverpool permitted the ship to remain unmolested in

British waters during nearly two days, when they were or should 87] have been cognizant of *it. Whither she had gone was, in fact,

quite unknown until the master of a tug-boat reported that she had been cruising off Point Lynas, about fifty miles from Liverpool. It is said that at the time when this report was received, the collector had received orders to stop the vessel. If this was so, he had not the means of immediately seizing a ship fifty miles away, off the coast of Wales. It is said that her departure from the Mersey was "hastened by the illicit receipt of intelligence of the decision of the government to stop ber." It is difficult to understand how this could have been the case, since the decision of the government to stop her was not formed till Case of the United States, p. 377.

* See the affidavit of Redden, Appendix to Case of the United States, vol. vi, p. 422.

after the report of the law-officers, which was only received on the 29th; and if it had been so, the British government could never be held responsible for the treachery of some unknown subordinate, who may have become informed of their decision, or may have anticipated that it would be made.

Her Majesty's government maintains that claims in respect of the Alabama must be supported, if at all, solely and entirely by a clearly ascertained failure of duty, for which the government itself can justly be held responsible, and that the failure of duty must be such as can with propriety be made the subject of a serious international complaint. To found a complaint or claim, wholly or in part, on the asserted fact that a government would not act against persons or property within its dominions without "strict technical evidence," either means nothing, or means that the rules which civilized states have found necessary in the domestic administration of justice, for the protection of private rights and of persons wrongfully accused, are to be set aside in cases of international controversy. International law would then become a pretext, not only for interfering with the internal arrangements of different countries in matters of legal procedure, but for drawing back society to the use of those less safe means for the enforcement of rights which, in the course of its progress, it has found reason to exchange for other and more equitable means.

To found a charge of neglect on the lapse of so short an interval as occurred in the case of the Alabama between the production of evidence and the decision that it was sufficient to act upon, is to lay down an impracticable standard of human conduct. It is a demand that the conduct of a government, with its various departments, with modes of action which are of necessity methodical, and more or less complex, shall proceed with a mechanical precision which is not applicable to the practical business of life. Where nice considerations of right, as between parties having opposite interests, have to be weighed, the application of such a principle is palpably unreasonable; yet on what other principle can it be maintained that the time taken between Friday, the 25th, and Tuesday, the 29th July, for the joint action of the foreign office and the law-officers was so plainly excessive that it may justly be made a ground for formal condemnation? Does it not rather carry with it presumptive evidence of good faith?

As to the subsequent arming of this vessel in the waters of the Azores, Her Majesty's government is content to refer the arbitrators to the statements contained in the British case. They are told, indeed, in the case of the United States, that she was "armed within British jurisdiction," which is explained as meaning that the armament intended for her was sent from the same port as the ship herself. It is added that "the British authorities had such ample notice, that they must be assumed to have known all the facts." If by this it be meant that the government or its officers had any notice of the dispatch of the Alabama's armament, the fact is otherwise; if the meaning be that. because they knew of the building of the ship, they must be assumed to have known the arrangements for arming her, (of which they, as well as the minister and consul of the United States, were in fact totally ignorant,) this, to say the least, would be a presumption of a very strange and unusual kind.

As to this point, it is enough to repeat here what was said in the case of Great Britain. The Alabama sailed from England wholly unarmed, and with a crew hired to work the ship, and not enlisted for the confederate service. She received her armament at a distance of more

than 1,000 miles from England, and was armed for war, not within the Queen's dominions, but either in Portuguese waters or on the high seas. The guns and ammunition, which were put on board of her off Terceira, had been procured and exported from England in an ordinary merchantsteamer, which loaded them as cargo, and sailed with a regular clear: ance for Nassau. The clearance and departure of this steamer presented, so far as Her Majesty's government is aware, no circumstance distinguishing her from ordinary blockade-runners. No information was ever given or representation made to the government as to this ship or her cargo before she left British waters; nor does it appear that the errand on which she was employed was known to or suspected by the officials of the United States. But, even had a suspicion existed that her cargo was exported with the intention that it should be used, either in the Confederate States or elsewhere, in arming a vessel which had been unlawfully fitted in England for warlike employment, [88] this would not *have made it the duty of the officers of customs to detain her or have empowered them to do so. Such a transaction is not a breach of English law, nor is it one which the British government was under any obligation to prevent. Whether the cargo was sent from the same port as the ship or from a different port, and by the same or different persons, is manifestly immaterial for this purpose. The distinction is plainly not such as to create in the one case a duty which would not arise in the other.

The Alabama was commissioned by the government of the Confederate States, and officered by American citizens. Of the crew, a considerable number were British subjects, who were induced by persua-sion and promises of reward to take service in her when she was off Terceira. Others were American citizens, and the proportion which these bore to the rest increased during her cruise.

Her Majesty's government refrains, in the case of this vessel, as in that of the Florida, from pursuing in this place the complaints made respecting the subsequent admission of her into some of the colonial ports of Great Britain. It is said, indeed, in the case of the United States, that Earl Russell promised Mr. Adams to send orders to Jamaica (which she visited in January, 1862) to detain her for a violation of British sovereignty, and that this promise was not kept; and that "Great Britain did not, as Earl Russell had promised, send out orders for her detention," is one of the grounds on which the United States ask an award against this country. Earl Russell gave no such promise. In a conversation with Mr. Adams, immediately after she left Liverpool, and at a time when her immediate destination was unknown, he is stated to have told the latter that he "should send directions to have her stopped if she went, as was probable, to Nassau." Orders to this effect were in fact sent. But the contingency contemplated as probable did not occur; the ship, as has been seen, did not go to Nassau, but to Terceira; and, when she first appeared in British waters, she was a commissioned ship of war, and had been received as such in a French port, as she afterward was (notwithstanding the remonstrances of the United States) in ports of Brazil. It was not the duty of the British government, or of any other neutral power, to cause her to be seized and detained when she entered its ports in that character. She was received there under precisely the same conditions as vessels of war of the United States, and the imputation of partiality which is cast, in the case of the United States, on the governor of the Cape Colony, is entirely devoid of foundation. Nor is it necessary to enter into the complaints laid before Her Majesty's government by Mr. Adams respecting

acts done by the commander of the Alabama on the high seas. Mr. Adams does not seem to have remembered that a sentence of condemnation is not necessary where there is no neutral interest in ship or cargo; nor that the practice of using false colors to approach an enemy is regarded in all navies as allowable, provided the true flag be hoisted before a shot is fired. Her Majesty's government is not, however, concerned to defend the conduct of the captain of the Alabama, when out of its jurisdiction, in these or any other particulars. Whatever it may have been, Great Britain is not responsible for it; and if it furnished any reason against the admission of his ship into British ports, it would have been equally valid against her reception in the ports of France and Brazil.

It will have been observed from the foregoing statement, as well as from the fuller narrative which Her Majesty's government has previously presented to the arbitrators, that the cases of the Florida and Alabama differ from one another in various more or less important particulars. But Her Majesty's government again submit that neither in respect of the Alabama nor in respect of the Florida is Great Britain chargeable with any failure of international duty for which reparation is due from her to the United States.

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