of 1818;) but you and your deputies are expected to receive all information that may be offered, and to be attentive to all matters of suspicion that may come to your knowledge; and, in cases where your action is required, to be vigilant, prompt, and efficient. I will thank you to communicate to me, from time to time, any information that you may deem trustworthy and important.

On the 28th December, 1870, Mr. Fish, Secretary of State, wrote thus to Mr. Roberts, the Spanish Minister:

The undersigned takes the liberty to call the attention of Mr. Roberts to the fact that a District Attorney of the United States is an officer, whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal proofs, founded not upon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a Consul, but upon proof submitted according to the forms required by law. (British Counter Case, page 46.)

These extracts are conceived to show that the principles and rules of practice of the Executive authorities of the United States, as to the evidence necessary to constitute "reasonable ground for belief," that any illegal equipment has been made or is being attempted within their jurisdiction, and to call for "diligence" in the use of the preventive powers of their law, have always been, and still are, essentially the same with those on which the Government of Great Britain acted during the transactions which are the subject of the present inquiry.

35. Of the sugges

tion, that the belt

of the consuls of the United States, in British ports, should

Staffcient prima facie

be treated as

After these instances of the practice of the United States in similar cases, it seems hardly necessary to recur to the extraordinary suggestion of Mr. Dudley, adopted in the American Argument, (page 44,) that whenever the American Consul at Liverpool told the British authorities that "he had no doubt" about the character of a particular vessel, they ought to have accepted this as sufficient till the contrary was shown, and not to have thrown the burden of proof upon the persons giving the information; that "the Government ought to investigate it, and not call upon us for proof." It was indeed quite right and proper that the officers of the British Government should investigate every case of which they were so informed for themselves, as well as they were able; and this is what they actually did on all occasions. But the British authorities at Liverpool had too frequent experience of the error and fallacy of Mr. Dudley's conclusions, drawn from the association with particular vessels of firms or persons known or believed to be in the Confederate interest, to make it possible for them, as reasonable men, to act upon Mr. Dudley's charges as sufficient to throw the burden of proof upon the parties accused, even if such a principle had not been opposed both to British and to American law. In August, 1861, the American Consul at Liverpool, through Mr. Adams, denounced the Bermuda as an "armed steamer," which was "believed to be about to be dispatched with a view of making war against the people of the United States," and which was "ostensibly owned by Fraser, Trenholm & Co." (British Appendix, vol. ii, page 133.) Mr. Adams, writing to Mr. Seward on the 30th August, 1861, said: "No stronger case is likely to be made out against any parties than this. The activity of our Consuls, Messrs. Wilding and Davy, furnished me with very exact information of all the circumstances attending the equipment of this vessel, and yet Her Majesty's Government, on being apprised of it, disclaimed all power to interfere." (American Appendix, vol. i, page 518.) The Bermuda, nevertheless, turned out to be an ordinary blockade-runner. In March and April, 1863, a ship called the Phantom, building at Liverpool by W. Miller & Son, for Fraser, Trenholm & Co., and supplied with engines by Fawcett, Preston & Co., at the launch or trial trip, of which Captain Bullock, Mr. Tessier, and Mr. R. Hamilton, &c., were present; and another ship called the Southerner, building at Stockton for Fraser, Tren

holm & Co., and meant to be commanded by Captain Butcher, were in like manner denounced. Affidavits of the connection of these firms and persons with the ships were furnished; and the accusations were pressed with great pertinacity, even after Mr. Squarey, the legal adviser of Mr. Dudley, at Liverpool, had admitted that (as to the Phantom there was no case. About the Southerner, Mr. Dudley affirmed, from the beginning, with the utmost positiveness, that "there was no doubt." And yet it turned out that the charges as to both these vessels also were wholly groundless, notwithstanding the interest in them of those firms and persons, whose very names seem to have been supposed by the Consuls of the United States to be sufficient prima facie evidence of a violation of the law. The Phantom proved to be a blockade-runner, and the Southerner to be a passenger-vessel, whose first employ ment was to carry Turkish pilgrims in the Mediterranean. (British Appendix, vol. ii, pages 167–209.)

36. The preventive

ican law tried by the

sults.

With respect to the value of the suggestions, in the Argument of the United States, that certain parts of their administrative efficacy of the Amer machinery (such as the employment of District Attorneys, test of practical re- and the encouragement offered to informers by the law. which gives them half the forfeitures obtained by their means) are more effective than the practice of Great Britain, under which the Attorney-General is (in England) the only public prosecutor. and no share of any forfeiture under the Foreign-Enlistment Act is given to informers; light may also be derived from the preceding extracts. On these, however, and all similar points, (giving to the authorities of the United States the credit which they claim for using such preventive powers as they possessed in good faith, and with what they deemed due diligence for their intended purposes,) no evidence can be more instructive than that of practical results.

Between the years 1815 and 1818, (notwithstanding everything which the Executive of the United States could do to the contrary,) twentyeight vessels were armed or equipped in, and dispatched from, the ports of the United States, or within their jurisdiction, for privateering against Spain, viz, seven at New Orleans, one at Barrataria in the Gulf of Mexico, two at Charleston, two at Philadelphia, twelve at Baltimore, and four at New York. (See the list furnished by the Spanish Minister, Appendix to British Case, vol. iii, page 132.)

In the years 1816 to 1819, twenty-six ships were armed in and dispatched from Baltimore alone for privateering against Portugal. (Let ter from Chevalier de Serra, November 23, 1819. Ibid., page 155.)

In the period between 1816 and 1828, sixty Portuguese vessels were captured or plundered by privateers armed in American ports, and the ships and cargoes appropriated by the captors to their own use. (Letter from Senhor de Figaniere e Morao. Ibid., page 165.)

The Proclamation of President Van Buren, of the 5th of January. 1838, stated that information had been receeived that, "notwithstand ing the Proclamation of the Governors of the States of New York and Vermont, exhorting their citizens to refrain from any unlawful acts within the territory of the United States, and notwithstanding the presence of the civil officers of the United States,

arms and

munitions of war and other supplies have been procured by the (Cana dian) insurgents in the United States; that a military force, consisting in part, at least, of citizens of the United States, had been actually organized, had congregated at Navy Island, and were still in arms under the command of a citizen of the United States, and that they were con stantly receiving accessions and aid."

On the 10th March, 1838, a temporary Act of Congress was passed to provide for more efficacious action in repressing these outrages than was provided by the Act of 1818.

Nevertheless, on the 21st November, 1838, President Van Buren found it necessary to issue another Proclamation, in which he said that, in disregard of the solemn warning heretofore given to them by the Proclamations issued by the Executive of the General Government, and by some of the Governors of the States, citizens of the United States had combined to disturb the peace of a neighboring and friendly nation; and a "hostile invasion" had "been made by the citizens of the United States in conjunction with Canadians and others," who "are now in arms against the authorities of Canada, in perfect disregard of their own obligations as American citizens, and of the obligations of the Government of their country to foreign nations."

In August, 1849, President Taylor issued a Proclamation, stating that there was 66 reason to believe that an armed expedition" was "about to be fitted out in the United States with an intention to invade Cuba ;" and letters were written on the subject to the District Attorneys in Louisiana and at Philadelphia, Baltimore, and Boston. (Appendix to American Counter Case, pages 646–648.)

On the 7th of May, 1850, Lopez, nevertheless, left Orleans with five hundred men; landed at Cardenas, and, after occupying the town, fled on the approach of the Spanish troops, and returned to the United States.

It appears, from the Appendix to the American Counter Case, that orders were given for his arrest on the 25th of May, 1850, but the result is not mentioned. (Pages 666, 667.)

On the 27th May, 1850, he was arrested, but discharged; and although the Grand Jury brought in a true bill against him on the 21st July, the prosecution was abandoned.

On the 3d August, 1850, he started on a second expedition with four hundred men, and was executed in Cuba on the 11th September. (British Counter Case, pages 36, 37. See also Appendix to American Counter Case, pages 676–686.)

In October, 1853, an expedition against Mexico issued under Walker from San Francisco, and seized the town of La Paz. In May, 1855, a second expedition issued from the same city, under the same adventurer, against Central America. This expedition landed at Realejo, and Walker continued in Central America until May, 1857, when he was conveyed from Rivas in the United States ship of war Saint Mary's. He then made preparations in the United States for a third expedition; and these renewed preparations occasioned the circular of September 18, 1857, urging the District Attorneys and Marshals to use "due diligence" to enforce the Act of 1818. (British Counter Case, page 38.)

In spite of this, Walker again eluded the law on the 11th September, 1857, and sailed from Mobile with three hundred and fifty men. After occupying Fort Castillo in Central America, he was intercepted by Commodore Paulding and brought to the United States. The American Argument mentions this officer as one of those who have been employed "to maintain the domestic order and foreign peace of the Government," (page 70;) presumably on this occasion; but it will be seen, from the Appendix to the American Counter Case, that his conduct was severely censured by the President at the time, (page 612.)

In December, 1858, another expedition started from Mobile in the Susan, but was frustrated by the vessel being wrecked.

In November, 1859, a further expedition was attempted in the Fashion.

In June, 1860, Walker made his last expedition from the United States, and was shot at Truxillo. (British Counter Case, pages 37-40. See also Appendix to American Counter Case, pages 515-518, 612-627, 632-643, 707-709.)

It may be interesting to mention that a correspondence, respecting claims between the Republic of Nicaragua and the United States, has recently been published in the official Gazette of that Republic, in which the Government of Nicaragua desired that, in a proposed adjustment of claims by a Mixed Commission, the claims of Nicaragua for injuries and losses sustained by these "filibustering" expeditions should be taken into consideration. The Government, however, of the United States declined all responsibility, on the ground that they had fulfilled all that could be required of them, either by the laws of the United States or by international law, and declared these claims to be inadmissible.

The British Counter Case gives an account of the open preparations for an attack on Canada continued during the years 1865–66. The first raid took place from Buffalo and Saint Alban's in June, 1866.

The second raid was from Malone and Saint Alban's, in May, 1870. The third raid was on the Pembina frontier, in October, 1871.

Expeditions proceeded from the United States, in aid of the Cuban insurgents, in the Grapeshot and Peritt, in May, 1869; and from New Orleans in the Cespedes, or Lilian, in October, 1869. (The latter was stopped at Nassau.)

Another expedition, in the Hornet or Cuba, (the vessel having been previously libeled in the Admiralty Court and bonded in 1870,) landed in Cuba in January, 1871. (British Counter Case, page 45.)

The foregoing narrative is necessarily brief and imperfect; but it shows, besides the systematic privateering practiced, by subjects of the United States, against Spain and Portugal in 1816-28, (when upward of fifty-four privateers are mentioned as having been armed and dispatched from American ports,) two expeditions against Cuba under Lopez; six expeditions under Walker; three Fenian raids; and three expedi tions in aid of the Cuban insurgents. The latter, according to the reports in the American press, would appear to be still continued.

IX.--General Conclusion: the failure to prevent does not always prore a want of "due diligence."

37. The general re

many failures to prevent

without want of due

Cluses for which
Governments cannot

The general result, to which we have been led as well by reason and principle as by experience, is this: that occasional (it may it proves, that even be frequent) failures to prevent acts contrary to law, may happen, and injurious to a friendly State, may nevertheless be diligence, from entirely consistent with a serious intention and bona fide endeavor, on the part of the Government whose subjects be held responsible. commit such acts within its jurisdiction, to prevent them, and with the use of due diligence for that purpose; that, without timely information and evidence of a legal kind, sufficient and proper to con stitute a "reasonable ground of belief," no obligation to use any such diligence arises, and that the Government of a civilized nation cannot be held wanting in due diligence if, having made reasonable provision by law for the prevention of illegal acts of this nature on the part of its citizens, it proceeds to deal with all such cases in a legal course, according to its accustomed methods of civil administration. This is, in fact, the diligence," and the only diligence which is, in such cases, generally "due" from an independent State to a foreign Government; and from this it follows that accidental and unintentional difficulties or delays,

66

or even slips and errors, such as are liable to result, in the conduct of public affairs, from the nature of the subordinate instruments by which, and the circumstances under which, civil Government is necessarily carried on, and against which no human foresight can always absolutely provide, ought not in themselves to be regarded as instances or proofs of a want of" due diligence," where good faith and reasonable activity on the part of the Government itself has not been wanting. Least of all can the Government of a free country be held wanting in due diligence, on the ground of errors of judgment, into which a Judge of a Court of Law, in the exercise of a legal jurisdiction properly invoked, may have fallen (as when the Florida was acquitted at Nassau) in the decision of a particular case.

"The United States agree with Her Majesty's Government when it says, as it does in its Counter Case, that it should not be, and they hope it is not, in the power of Her Majesty's Government to instruct a judge, whether in the United Kingdom or in a colony or dependence of the Crown, how to decide a particular case or question. No judge in Her Majesty's dominions should submit to be so instructed; no community. however small, should tolerate it; and no minister, however powerful, should ever think of attempting it." (Argument of the United States, p. 121.)

This being so, if the Government had information and evidence which made it their duty to detain such a ship as the Florida, and to endeavor to prosecute her to condemnation, and if they actually did so, and offered for that purpose proper evidence, they used all the diligence which was due from them. Over the judgment, whether right or erroneous, they had no control; and for it, if erroneous, they have no responsibility.1

But the counsel of the United States say that-.

· The efforts of the British Case and Counter Case to ascribe to, or apportion among, the various departments of national authority, legislative, judicial, and executive, principal or subordinate, the true measure of obligation and responsibility, and of fault or failure, in the premises, as among themselves, seem wholly valueless. If the sum of the obligations of Great Britain to the United States was not performed, the nation was in fault, wherever, in the functions of the State or their exercise, the failure in duty arose." (Argument, p. 147.)

The question, whether "the sum of the obligations of Great Britain to the United States" was or was not performed, (which is the point at issue,) seems to be here assumed. A petitio principii cannot, of course, be an answer to arguments intended to show that the sum of those national obligations was, in fact, performed. The United States affirm that in the various cases in which they themselves failed to prevent, within their own territory, equipments and expeditions hostile to other States, the sum of their own national obligations was performed; and yet they seem to deny to the Government of Great Britain the benefit of the same equitable principles of judgment.

X.-Of the burden of proof, according to the Treaty.

They go further: they seek to invert the whole burden of proof in the present controversy:

The foundation of the obligation of Great Britain to use "due diligence to prevent” certain acts and occurrences within its jurisdiction, as mentioned in the three Rules, is, that those acts and occurrences within its jurisdic

38. Attempt of the United States to

change generally the the present contro

onus probandi

versy.

The judgment of acquittal, when once pronounced by the Court of Admiralty in favor of the vessel, was conclusive, as a judgment in rem, preventing the possibility of her being afterward again seized as forfeited for a breach of the British Foreign-Enlistment Act, except on the ground of some new violation of the law, subsequent to that judgment. This point of law was expressly determined by the Supreme Court of the United States in the case of Gelston vs. Hoyt, already mentioned. The effect of judgments in rem by courts of admiralty is every where recognized by international law.