Chap. XIV.

After recapitulating some of the circumstances of the case, he proceeded :

"From a review of these circumstances essential to a right judgment of the question, the Government of the United States understand that the purpose of the building, armament, equipment and expedition of this vessel, carried with it one single criminal intent running equally through all the portions of this preparation, fully complete and executed when the gun-boat 'No. 290' assumed the name of the Alabama; and that this intent brought the whole transaction, in all its several parts here recited, within the lawful jurisdiction of Great Britain, where the main portions of the crime were planned and executed. Furthermore, the United States are compelled to assume that they gave due and sufficient previous notice to Her Majesty's Government that this criminal enterprise was begun and in regular process of execution, through the agencies herein described, in one of Her Majesty's ports. They cannot resist the conclusion that the Government was then bound by Treaty obligations and by the law of nations to prevent the execution of it. Had it acted with the promptness and energy required by the emergency, they cannot but feel assured the whole scheme must have been frustrated. The United States are ready to admit that it did act so far as to acknowledge the propriety of detaining this vessel for the reasons assigned, but they are constrained to object that valuable time was lost in delays, and that the effort when attempted was too soon abandoned. They cannot consider the justice of their claim for reparation liable to be affected by any circumstances connected with those mere forms of proceeding on the part of Great Britain which are exclusively within her own control.

"Upon these principles of law and these assumptions of fact resting upon the evidence in the case, I am instructed to say that my Government must continue to insist that Great Britain has made itself responsible for the damages which the peaceful, law-abiding citizens of the United States sustain by the depredations of the vessel called the Alabama.

"In repeating this conclusion, however, it is not to be understood that the United States incline to act dogmatically, or in a spirit of litigation. They desire to maintain amity as well as peace. They fully comprehend how unavoidably reciprocal grievances must spring up from the divergence in the policy of the two countries in regard to the present insurrection. They cannot but appreciate the difficulties under which Her Majesty's Government is labouring from the pressure of interests and combinations of British subjects apparently bent upon compromising by their unlawful acts the neutrality which Her Majesty has proclaimed and desires to preserve, even to the extent of involving the two nations in the horrors of a maritime war. For these reasons I am instructed to say, that they frankly confess themselves unwilling to regard the present hour as the most favourable to a calm and candid

examination by either party of the facts or the principles involved in Chap. XIV. cases like the one now in question. Though indulging a firm conviction of the correctness of their position in regard to this and other claims, they declare themselves disposed, at all times, hereafter as well as now, to consider in the fullest manner all the evidence and the arguments which Her Majesty's Government may incline to proffer in refutation of it; and in the case of an impossibility to arrive at any common conclusion I am directed to say, there is no fair and equitable form of Conventional arbitrament or reference to which they will not be willing to submit.

"Entertaining these views, I crave permission to apprise your Lordship that I have received directions to continue to present to your notice claims of the character heretofore advanced, whenever they arise, and to furnish the evidence on which they rest, as is customary in such cases, in order to guard against possible ultimate failure of justice from the absence of it.

"In accordance with these instructions I now do myself the honour to transmit the papers accompanying the cases heretofore withheld, pending the reception of later information.

This letter conveys the first proposal of arbitration made on the part of the United States to the British Government. It was offered as a suggestion, to be taken into consideration at a further period. It was considered accordingly, and declined in August 1865, on the ground that there were but two questions which could be made the subject of a reference: first, whether the British Government had acted with due diligence; secondly, whether its legal advisers had correctly understood their own municipal law; and that neither of these could properly be submitted to a foreign arbiter, still less to a joint commission. That this view was afterwards modified, will be seen when I have occasion to speak of the later negotiations of 1867.

These extracts from a large mass of despatches are enough to show the ground taken by the Government of the United States during the earlier stages of the correspondence. In respect of the Shenandoah it was alleged that, although the British Government could not reasonably be held responsible for her original equipment, it had fixed that responsibility on the nation by after

Chap. XIV. wards suffering her to be received in colonial ports. The losses sustained from the Shenandoah were accordingly added to the list of claims.

The form which these claims finally assumed when revived by President Grant's Government in the autumn of 1869 will appear in the following extracts from a despatch addressed by the Secretary of State to the American Minister in London, and communicated to the Earl of Clarendon :

"As time went on, as the insurrection from political came at length to be military, as the sectional controversy in the United States proceeded to exhibit itself in the organization of great armies and fleets, and in the prosecution of hostilities on a scale of gigantic magnitude, then it was that the spirit of the Queen's Proclamation showed itself in the event, seeing that, in virtue of the Proclamation, maritime enterprises in the ports of Great Britain, which would otherwise have been piratical, were rendered lawful, and thus Great Britain became, and to the end continued to be, the arsenal, the navy-yard, and the treasury of the insurgent Confederacy. A spectacle was thus presented without precedent or parallel in the history of civilized nations. Great Britain, although the professed friend of the United States, yet, in time of avowed international peace, permitted armed cruisers to be fitted out and harboured and equipped in her ports, to cruise against the merchantships of the United States, and to burn and destroy them, until our maritime commerce was swept from the ocean. Our merchant-vessels were destroyed piratically by captors who had no ports of their own in which to refit or to condemn prize, and whose only nationality was the quarter-deck of their ships, built, despatched to sea, and not seldom in name, still professedly owned in Great Britain.

"The Queen's Ministers excused themselves by alleged defects in the municipal law of the country. Learned Counsel either advised that the wrongs committed did not constitute violations of the municipal law, or else gave sanction to artful devices of deceit to cover up such violations of law. And, strange to say, the Courts of England or of Scotland up to the very highest were occupied month after month with judicial niceties and technicalities of statute construction in this respect, while the Queen's Government itself, including the omnipotent Parliament, which might have settled these questions in an hour by appropriate legislation, sat with folded arms as if unmindful of its international obligations, and suffered ship after ship to be constructed in its ports to wage war on the United States.

*

"When the defects of existing laws of Parliament had become

apparent, the Government of the United States earnestly entreated the Chap. XIV. Queen's Ministers to provide the required remedy, as it would have been easy to do by a proper Act of Parliament; but this the Queen's Government refused.

"On the present occasion the Queen's Ministers seem to have committed the error of assuming that they needed not to look beyond their own local law, enacted for their own domestic convenience, and might, under cover of the deficiencies of that law, disregard their sovereign duties towards another Sovereign Power.

"Nor was it, in our judgment, any adequate excuse for the Queen's Ministers to profess extreme tenderness of private rights, or apprehension of actions for damages, in case of any attempt to arrest the many ships which, either in England or Scotland, were, with ostentatious publicity, being constructed to cruise against the United States.

"But although such acts of violation of law were frequent in Great Britain, and susceptible of complete technical proof, notorious, flaunted directly in the face of the world, varnished over, if at all, with the shallowest pretexts of deception, yet no efficient step appears to have been taken by the British Government to enforce the execution of its municipal laws or to vindicate the majesty of its outraged sovereign power.

"And the Government of the United States cannot believe it would conceive itself wanting in respect for Great Britain to impute that the Queen's Ministers are so much hampered by judicial difficulties that the local administration is thus reduced to such a state of legal impotency as to deprive the Government of capacity to uphold its sovereignty against local wrong-doers, or its neutrality as regards other Sovereign Powers.

"If, indeed, it were so, the causes of reclamation on the part of the United States would only be the more positive and sure; for the law of nations assumes that each Government is capable of discharging its international obligations, and, perchance, if it be not, then the absence of such capability is itself a specific ground of responsibility for consequences.

"But the Queen's Government would not be content to admit, nor will the Government of the United States presume to impute to it, such political organization of the British Empire as to imply any want of legal ability on its part to discharge, in the amplest manner, all its duties of sovereignty and amity towards other Powers.

"It remains only in this relation to refer to one other point, namely, the question of negligence-neglect on the part of officers of the British Government, whether superior or subordinate, to detain Confederate cruisers, and especially the Alabama, the most successful of the depredators on the commerce of the United States.

"On this point the President conceives that little needs now to be said, for various cogent reasons. First, the matter has been exhaustively discussed already by this Department, or by the successive American Ministers. Then, if the question of negligence be discussed

Chap. XIV. with frankness, it must be treated in this instance as a case of extreme negligence, which Sir William Jones has taught us to regard as equivalent or approximate to evil intention. The question of negligence, therefore, cannot be presented without danger of thought or language disrespectful towards the Queen's Ministers; and the President, while purposing, of course, as his sense of duty requires, to sustain the rights of the United States in all their utmost amplitude, yet intends to speak and act in relation to Great Britain in the same spirit of international respect which he expects of her in relation to the United States; and he is sincerely desirous that all discussion between the Governments may be so conducted as not only to prevent any aggravation of existing differences, but to tend to such reasonable and amicable determination as best becomes two great nations of common origin and conscious dignity and strength.

"I assume, therefore, pretermitting detailed discussion in this respect, that the negligence of the officers of the British Government, in the matter of the Alabama at least, was gross and inexcusable, and such as indisputably to devolve on that Government full responsibility for all the depredations committed by her. Indeed, this conclusion seems in effect to be conceded in Great Britain. At all events, the United States conceive that the proofs of responsible negligence in this matter are so clear that no room remains for debate on that point; and it should be taken for granted in all future negotiations with Great Britain."

The general effect of these proceedings may, in the opinion of the American Government, be thus stated. Great Britain, and Great Britain alone "founded," on her recognition of the revolted States as belligerents, "a systematic maritime war against the United States, and this to effect the establishment of a Slave Government. What in France, in Spain, as their subsequent conduct showed, had been but an untimely and ill-judged act of political manifestation, had in England, as her subsequent conduct showed, been a virtual act of war."

1 Mr. Fish to Mr. Motley, 25th September, 1869. Mr. Motley read this despatch to the Earl of Clarendon, and gave him a copy of it. All the statements which it contained were answered in detail by Lord Clarendon, in a paper described as Observations on Mr. Fish's . Despatch. This was sent, with a covering despatch, to Mr. Thornton, and he was instructed to communicate it to the American Secretary of State. Mr. Fish's despatch was afterwards laid before Congress and published in the United States, but Lord Clarendon's answer was not published.

The Confederate Government had viewed the conduct of Great Britain