109. It is an error therefore to suppose that it was the duty of the authorities in any British port to seize or detain Confederate ships of war on the ground that they were suspected or believed to have been originally obtained from England or equipped there by violation or evasion of the law. On the contrary, to do this would have been a departure from the principles of an impartial neutrality: to do it without some previous notice, excluding them from the right of admission to ing characteristic of such a Government is, that adherents to it in war against the Goverument de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the Government de jure when restored.

"Examples of this description of Government de facto are found in English history. The statute 11 Henry VII, c. 1, relieves from penalties for treason all persons who, in defense of the King for the time being, wage war against those who endeavor to subvert, his authority by force of arms, though warranted in so doing by their lawful monarch.

"But this is where the usurper obtains actual possession of the royal authority of the kingdom; not when he has succeeded only in establishing his power over particular localities. Being in possession, allegiance is due to him as King de facto.

"Another example may be found in the Government of England under the Commonwealth, first by Parliament, and afterwards by Cromwell as Protector. It was not, in the contemplation of law, a Government de jure, but it was a Government de facto in the most absolute sense. It incurred obligations and made conquests which remained the obligations and conquests of England after the Restoration. The better opinion doubtless is, that acts done in obedience to this Government could not be justly regarded as treasonable, though in hostility to the King de jure. Such acts were protected from criminal prosecution by the spirit, if not by the letter, of the statute of Henry the Seventh. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason, in the year following the Restoration. But such a judgment, in such a time, has little authority.

"It is very certain that the Confederate Government was never acknowledged by the United States as a de facto Government in this sense. Nor was it acknowledged as such by other powers. No treaty was made by it with any civilized State. No obligations of a national character were created by it, binding, after its dissolution, on the States which it represented, or on the National Government. From a very early period of the civil war to its close, it was regarded as simply the military representative of the insurrection against the authority of the United States.

"But there is another description of Government, called also by publicists a Government de facto, but which might, perhaps, be more aptly denominated a Government of paramount force. Its distinguishing characteristics are, (1,) that its existence is maintained by active military power, within the territories, and against the rightful authority of an established and lawful Government; and (2,) that while it exists, it must necessarily be obeyed in civil matters by private citizens, who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrong-doers, for those acts, though not warranted by the laws of the rightful Government. Actual Governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered also by civil authority, supported more or less directly by military force. "One example of this sort of Government is found in the case of Castine, in Maine, reduced to British possession during the war of 1812. From the 1st of September, 1814, to the ratification of the Treaty of Peace in 1815, according to the judgment of this Court in United States vs. Rice, the British Government exercised all civil and military authority over the place. The authority of the United States over the territory was suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. It is not to be inferred from this that the obligations of the people of Castine as citizens of the United States were abrogated. They were suspended merely by the presence, and only during the presence, of the paramount force. A like example was found in the case of Tampico, occupied during the war with Mexico by troops of the United States. It was determined by this Court, in Fleming rs. Page, that, although Tampico did not become a port of the United States in consequence of that occupation, still, having come, together with the whole State of Tamaulipas, of which it was part, into the exclusive possession of the national forces, it must be regarded and respected by other nations as the territory of the United States. These were cases of temporary possession of territory by lawful and regular Governments at war with the country of which the country so possessed was part.

British ports according to the ordinary practice of nations, would have been a flagrant public wrong.

110. But it may be observed that in order to charge Great Britain with a breach of international duty, and a consequent heavy liability, on the plea that they were not arrested and detained by the authorities of the British Colonies visited by them, it would be necessary to prove, not only that the forbearance to do so was a mistaken exercise of judg.

"The Central Government, established for the insurgent States, differed from the temporary Governments at Castine and Tampico in the circumstance that its authority did not originate in lawful acts of regular war; but it was not, on that account, less actual or less supreme. And we think that it must be classed among the Governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it, in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of that territory were held, in most respects, for enemies. To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent Government cannot be questioned. That supremacy did not justify acts of hostility towards the United States. How far it should excuse them must be left to the lawful Government upon the re-establishment of its authority. But it made obedience to its authority, in civil and local matters, not only a necessity but a duty. Without such obedience, civil order was impossible.

"It was by this Government exercising its power throughout an immense territory that the Confederate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent States. As contracts in themselves, except in the contingency of successful revolution, these notes were nullities; for, except in that event, there could be no payer. They bore, indeed, this character upon their face, for they were made payable after the ratification of a treaty of peace between the Confederate States and the United States of America.' While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force.

"It seems to follow as a necessary consequence from this actual supremacy of the insurgent Government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign Government, temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency cannot be regarded for that reason only as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile Government, whether invading or insurgent. They are transactions in the ordinary course of civil society; and, though they may indirectly and remotely promote the ends of the unlawful Government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation. The first question. therefore, must receive an affirmative answer."

The reasons given for the judgment of the Court on the two remaining questions have no bearing on the subject of this note.

The United States Counter Case states (sec. iii, par. 3,) that the Arbitrators will observe that the other Governments did not recognize the title" (Confederate States) "which the insurgents had taken for themselves.”

The British Proclamation of Neutrality, May 13, 1861, (Appendix to British Case, vol. iii, p. 17,) referred to the seceded States not as the "Confederate States," but as "certain States styling themselves the Coufederate States;" and throughout the civil war they were constantly spoken of in the British official correspondence and notifica tions as the " so-styled Confederate States."

On the other hand, the Spanish Proclamation of the 17th June, 1861, (Appendix to British Case, vol. iii, p. 23,) uses the designation "Confederate States of the South." The United States Minister at Madrid informed the Spanish Government that "the President had read" this Proclamation "with the greatest satisfaction." (Diplomatic correspondence laid before Congress, 1861, p. 224.)

The circular instructions issued by the Government of Brazil, June 23, 1863, speak of "the steamer Alabama of the Confederate States." (Appendix, vol. iii, p. 25.) The term used in the French Declaration of the 10th June, 1861, viz, "les Etats qui prétendent former une Confédération particulière," is in fact equivalent in signification to the words of the British Proclamation, "styling themselves."

ment on a question of at least reasonable doubt, but that it was a plain violation of a known and established rule. It would be impossible to maintain this with any semblance of reason. In truth, the colonial authorities acted rightly.

ed to Confederate

ports.

111. It is further suggested by the United States that these vessels, when admitted into ports of the British Colonies, were al- Complaint as to lowed to enjoy there facilities and advantages which were hospitalities accordnot accorded to armed vessels of the United States. And cruisers in British (since it is evident that mere partiality, though it would be a deviation from neutrality, and, as such, a proper subject for remoustrance, would not supply a ground for such claims as those of the United States) it is also contended that these facilities and advantages were such as by the rules of international law no neutral may concede to any belligerent, and that they enabled or assisted the Confederate cruisers to inflict the losses on which the United States found their claim against Great Britain.

112. It has been clearly shown, on the contrary, in the British Counter Case, not only that the particular restrictions for which the United States contend as imposed by international law had in reality no existence, were not known to that law, and are not deducible from the three Rules of the Treaty of Washington, (Counter Case, Part II, pp. 15, 16;) but it has likewise been amply proved by a detailed examination of the facts, that all the complaints of the United States on this score are devoid of the slightest foundation; that the British Colonies, though occasionally resorted to by Confederate ships, were by far more largely and more freely used by armed vessels of the United States; that no partiality whatever was shown to the former; and that, if infractions of the Queen's Regulations were sometimes committed, the United States cruisers were the more frequent offenders; lastly, that the treatment of Confederate cruisers in British ports was essentially the same as that which they received in the ports of other neutral nations, and by no means more lax or indulgent. (Counter Case of Great Britain, Part IX.)1

of the United

113. It has thus been made manifest that the complaints of the United States, notwithstanding their number, the charac- Review of the ter of gravity which has been ascribed to them, and the grounds on which the warmth with which they have been urged, reduce them- States rest. selves when examined to a very small compass. After all charges which are irrelevant, plainly inadmissible, or absolutely trivial, have been set aside, there remain only some allegations, (which Great Britain contends are erroneous,) applicable, at the most, to one or two isolated cases of unintentional delay or mistaken judgment on questions new and doubtful, on the part either of the Government itself or of sub

It is stated in the Counter Case of the United States, sec. v, par. 5, that "it appears in clear colors that Bermuda was made a base of hostile operations by the Florida. The commander of that vessel having coaled, and having been at Barbados within less than seventy days, and having then cruised off the port of New York destroying American vessels, arrived at Bermuda and informed the Governor of all these facts. The Governor, with a knowledge of them, gave him a hospitable reception and permitted him to coal and repair." This passage might lead to the impression that the Florida had coaled at Barbados within seventy days of her arrival at Bermuda, but this was not the fact. The Florida coaled at Barbados on the 24th of February, 1863. (Appendix to British Case, vol. i, p. 91.) She did not arrive at Bermuda till the 15th of July following, nor did she coal at any British port in the interval. On his arrival at Bermuda, her commander stated that he had been at sea seventy days, with the exception of visits to the Havana, Barbados, and a port in the Brazils, each of which had occupied less than twenty-four hours. (Appendix to British Case, vol. i, p. 108.) No coal was taken in at Barbados on this second visit.

ordinate officials in Great Britain or in distant colonies and dependencies. The multiplied and heavy claims which the United States make against Great Britain rest on this slender foundation.

114. The British Government will here repeat some observations which it has already presented to the consideration of the Arbitrators:

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 its 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. It is not enough to suggest or prove that a Government, in the exercise of a reasonable judgment on some question of fact or law, and using the means of information at its command, has formed and acted on an opinion from which another Government dissents or can induce an Arbitrator to dissent. Still less is it sufficient to show that a judgment pronounced by a court of competent jurisdiction, and acted upon by the Executive, was tainted with error. An administrative act founded on error, or an erroneous judgment of a Court, may, indeed, under some circumstances, found a claim to compensation on behalf of a person or Government injured by the act or judgment. But a charge of negligence brought against a Government cannot be supported on such grounds. Nor is it enough to suggest or prove some defect of judgment or penetration, or somewhat less than the utmost possible promptitude and celerity of action, on the part of an officer of the Government in the execution of his official duties. To found on this alone a claim to compensation, as for a breach of international duty, would be to exact, in international affairs, a perfection of adminis tration which few Governments or none attain in fact, or could reasonably hope to attain, in their domestic concerns; it would set up an impracticable and, therefore, an unjust and fallacions standard, would give occasion to incessant and unreasonable complaints, and render the situation of neutrals intolerable. Nor, again, is a nation to be held responsible for a delay or omission occasioned by mere accident, and not by the want of reasonable foresight or care. Lastly, it is not sufficient to show that an act has been done which it was the duty of the Government to endeavor to prevent. It is necessary to allege and to prove that there has been a failure to use, for the prevention of an act which the Government was bound to endeavor to prevent, such care as Governments ordinarily employ in their domestie concerns, and may reasonably be expected to exert in matters of international interest and obligation. These consideratious apply with especial force to nations which are in the enjoyment of free institutions, and in which the Government is bound to obey, and cannot dispense with, the laws..

Character of the

States.

115. What, then, are the claims which, on these slight and unsubstan tial grounds, the United States have presented to the triclaims of United bunal? They are claims for the value of all captures made by all the ships enumerated in their Case-nay, even (as it would seem) for all captures whatever ascertained to have made by confederate armed ships during the war; for all losses inflicted by them which the American citizens who have suffered thereby may think proper to ask to have charged against Great Britain; and, further, for the expenditure alleged to have been incurred in trying to capture those ships or to protect United States commerce against them. 116. The British Government has thought it right to present to the notice of the arbitrators some considerations, which it be the principle and lieves to be just and material, directed to show that any claims of this nature for losses in war, alleged to have been sustained through some negligence on the part of the neutral, are, in principle, open to grave objections. It has been observed that the alleged default of the neutral, even if it be established, is not, in any true or proper sense, the cause of the loss to the belligerent; certainly, it is in no sense the direct or active cause; that the only share in producing this loss which can be attributed to the neutral is indirect and passive, and consists in mere unintentional omission; that

Observations on

measure of compen

sation.

1 British Case, pp. 166-7.

to ascertain with any approach to precision what that share really had been would be in almost all cases difficult, and in many impossible; that there is no precedent for such claims, and that any argument which can be derived from the treaty of 1794, and the proceedings of the commissioners under it, militates against them. It was further pointed out that the relation actually held toward the United States by the people of the Confederate States, who were the active agents in inflicting the losses complained of, and by whom, according to the reasoning of the United States themselves, the neutrality of Great Britain was violated or eluded, is itself an argument against these demands. These States are part of the Union, and would share in any benefit which would accrue to its public revenue from whatever the arbitrators might award to be paid by Great Britain. On what principle of international equity, it was asked, can a Federal Commonwealth, so composed, seek to throw upon a neutral, assumed at the most to have been guilty of some degree of negligence, liabilities which belonged in the first degree to its own citizens, with whom it has now re-entered into relations of political unity, and from which it has wholly absolved those citizens?1

117. Supposing, however, the question of compensation to arise, and supposing the arbitrators to be of opinion that claims of this nature are not altogether inadmissible in principle, it has been maintained, on the part of Great Britain

That the losses which may be taken into account by the arbitrators are at the utmost those only which have directly arisen from the capture or destruction, by one or more of the cruisers specified in the case of the United States, of ships or property owned by the United States, or by citizens of the United States, and that the extent of the liability of Great Britain for any such losses cannot exceed that proportion of them which may be deemed justly attributable to some specific failure or failures of duty on the part of her Government in respect of such cruiser or cruisers;

That it is the duty of the arbitrators, in deciding whether claims for compensation in respect of any particular default are tenable, and on the extent, if any, of liability incurred by such default, to take into account, not only the loss incurred, but the greater or less gravity of the default itself and all the causes which may have contributed to the loss, and particularly to consider whether the alleged loss was wholly or in part due to a want of reasonable activity and care on the part of the United States themselves, to an omission on their part to take such measures as would have prevented or stopped the depredations complained of, and conduct the operations of war, proper for that purpose, with the requisite degree of energy and judgment;

That the claims for money alleged to have been expended in endeavoring to capture or destroy any confederate cruiser are not admissible together with the claims for losses inflicted by such cruiser;2

That the claims for interest are clearly inadmissible. The demands of the United States are not for a liquidated sum, payment of which has been delayed by the fault of the debtor. They are a mass of doubtful claims, of unascertained amount, which have been a subject of negoti ation, which Great Britain has long been willing to refer to arbitration, and which would have been so referred, had not obstacles been repeatedly interposed by the United States;

3

3 Ibid., p. 141.