were found in its history, as the case of the Swedish ships,1 violations of American neutrality in 1793 and 1794 and during the war carried on by Spain and Portugal against the SpanishAmerican colonies, and later violations of the same kind, including the Lopez expeditions against Cuba, the Walker expeditions against Mexico and Central America, the Fenian raids into Canada, and the various criminal enterprises from 1869 to 1871 in aid of the insurrection in Cuba. From these examples the following conclusions were deduced: 1. That the argument of the United States that a neutral government was bound to apply to the various duties which purported to be enumerated in the three rules, when pushed even beyond the natural meaning of the words, a diligence the most energetic, vigilant, and exact, found no support in the history or in the practice of the United States. 2. That the argument that compensation was due, as of right, for any loss sustained in war by a belligerent which might be traced to a relaxation of diligence in preventing violations of neutrality, whether sound or not, was not supported by any precedent. 3. That where compensation had been claimed in such cases it had been limited to values of ships and cargoes captured by vessels unlawfully fitted out and armed; and that the claim had never been admitted except when such prizes had been brought by the captors within the jurisdiction of the neutral power. 4. That there was no trace of an obligation on the part of a neutral government to seize and detain an armed ship entering its ports, commissioned as a public ship of war, which had received any equipment or any adaptation for war within its jurisdiction; that while the Government of the United States in 1793 directed that privateers which had violated its neutrality should not have any asylum in its ports, it acknowledged no obligation to do so, and that the exclusion seemed to have been "by no means steadily enforced." Nor could Her Majesty's government forbear to remark that the history of the subject was "from first to last a history of unlawful enterprises originated either in the United States or by citizens of the United States in other countries."

Traffic in Contraband.

The complaints of the United States in regard to the traffic in munitions of war did not, said the British Counter Case, fall within the scope of the arbitration. No power had asserted the right of

1 De Martens's Causes Célèbres, V. 229, ed. 1861.

the neutral to traffic in contraband so strongly, unreservedly, and consistently as the United States, and no nation had more freely acted upon it. The transportation of military supplies was equally a contraband commerce, whether carried on openly or covertly, from Liverpool or from London or from Nassau. At the commencement of the war both belligerents resorted to Great Britain for supplies of arms and military material. Prior to May 1861 the Government of the United States sent agents to England to purchase arms. Such agents were also sent out by some of the States. Extra supplies of small arms, percussion caps, cannon and other ordnance, saltpeter, lead, clothing, and other warlike stores, representing a value of not less than £2,000,000, of which £500,000 were for muskets and rifles alone, were exported from England to the northern ports of the United States during the civil war. Large quantities were also purchased by the United States in France, Austria, and other neutral countries. Some of the agents who effected the purchases were officers in the military service; arrangements were made for the regular shipment from England of the goods purchased from time to time; payment was made through the financial agents of the American Government in England. In the sense in which the expressions were used in the Case of the United States, that government, said the British Counter Case, had in England during the civil war "a branch of its War Department and a branch of its Treasury." As to what was said of the firm of Frazer, Trenholm & Co., it was found that Prioleau in fact settled himself as a merchant in Liverpool in 1854 and remained in England, except an absence of a few months, till June 1863, when he applied for naturalization, stating in his application that he had been a resident householder for eight years, had married an English wife, and was desirous of acquiring landed property in England and residing there permanently. The hypothecation of stocks of cotton, stored for exportation, and to be delivered after the conclusion of the war, was a transaction which it was not the duty of the British Government nor within its power to prohibit any more than it was its duty or within its power to prohibit subscriptions by British subjects to the war loans issued by the United States as well as by the Confederacy.'

1 Cobden, in a letter to Sumner of April 2, 1863, referring, among other things, to dealings in contraband, said: "Now, there are certain things which can be done and others which can not be done by a government. We are bound to do our best to prevent any ship of war being built for

As to the complaints touching the Nassau The Nassau Trade. trade, the British Counter Case referred to the charge made by the United States that the colonial government rescinded a previously existing prohibition against the transshipment of cargoes in order to facilitate blockade running. This charge, said the British Counter Case, was based on "a loosely worded sentence occurring in a letter purporting to be written by a Confederate agent," which letter was said to be one of a large number "captured at the taking of Richmond and at other times." Her Majesty's government had ascertained that the statement was erroneous. The fiscal regulations of the colony prohibited the transshipment of goods

the Confederate government, for a ship of war can only be used or owned legitimately by a government. But with munitions of war the case is different. They are bought and sold by private merchants for the whole world, and it is not in the power of governments to prevent it. Besides, your own government have laid down repeatedly the doctrine that it is no part of the duty of governments to interfere with such transactions for which they are not in any way responsible. I was, therefore, very sorry that Mr. Adams had persisted in raising an objection to these transactions in which, by the way, the North has been quite as much involved as the South. If you have read the debate in the House on the occasion when Mr. Foster brought up the subject last week, you will see how Sir Roundell Palmer, the solicitor-general, and Mr. Laird, the shipbuilder, availed themselves of this opening to divert attention from the real question at issue-the building of war ships to the question of selling munitions of war-in which latter practice it was shown you in the North were the great participators. You must really keep the public mind right in America on this subject. Do not let it be supposed that you have any grievance against us for selling munitions of war. Confine the question to the building of ships, in which I hope we shall bring up a strong feeling on the right side here." (Am. Hist. Rev. II. 309-310.)

In another letter, of May 22, 1863 (Id. 311), Cobden said: "I can not too often deplore the bungling mismanagement on your side which allowed the two distinct questions of selling munitions of war and the equipping of privateers to be mixed up together. It has confused the thick wits of our people, and made it difficult for those who were right on this side on the foreign enlistment act to make the public understand the difference between what was and what was not a legal transaction. In fact, your foreign office played into the hands of our politicians by affording them the means of mystification. If a plain, simple, short and dignified reclamation had been at first made against the fitting out of ships of war, with clear statement of the law, and a brief recital of what your government had done under similar circumstances, to us, it would have been impossible for our government to have resisted it. But when you opened fire on us for not stopping the export of arms and munitions of war, you offered an easy victory to our lawyers, and gave them an opportunity of escaping in a cloud of dust from the real question at issue."

unless they were landed for examination; but this prohibition, which had generally been suspended as a matter of course in the case of goods stated to be in transit, might in any case be dispensed with by permission of the receiver-general, which was frequently accorded during the war. The prohibition itself was not removed or modified, and no change was made in the regulations. That cargoes were in fact frequently transshipped, either with or without an intermediate landing, Her Majesty's government had no doubt. Yet the statement of the administrator of the Bahamas, of November 20, 1861, that no warlike stores had been received at Nassau for shipment to the Confederate States, was not "the announcement of an imaginary condition of affairs," but the truth at the time. The first arrival of a vessel suspected of being loaded with arms and munitions of war for the Confederate States was on December 9, 1861. But this fact did not call for inquiry on the part of the British Government. "To repress the trade, so far as it was not a bona fide trade between neutral ports carried on in neutral ships, was the business, not of Great Britain, but of the United States; and they did repress it accordingly by a strict and rigorous exercise of the belligerent rights of blockade, visit, search, and capture."

federates.

The complaints in the Case of the United Hospitalities to Con- States of "excessive hospitalities" on the part of the British authorities to Confederate cruisers and of "discourtesies to vessels of war of the United States" the British Counter Case examined with minuteness and pronounced to be groundless. "During the course of the civil war," said that document, "ten Confederate cruisers visited British ports. The total number of such visits was twentyfive, eleven of which were made for the purpose of effecting repairs. Coal was taken in at sixteen of these visits, and on sixteen occasions the limit of stay fixed by the regulations was exceeded. * On the other hand, the returns which have been procured of visits of United States vessels of war to ports of Great Britain and the colonies, though necessarily imperfect, show an aggregate total of 228 such visits. On thirteen of these repairs were effected; on forty-five occasions supplies of coal were obtained; and the twenty-four hours' limit of stay was forty-four times exceeded. It is dif ficult, indeed, to avoid the conclusion that these complaints spring from imperfect information. When, for example, it was asserted that the cruisers of the United States were virtually

**

excluded from the chief port of the Bahama Islands in favor of the Confederate cruisers, and we discover that these islands were thirty-four times visited by the former, while Nassau was but twice visited by the latter; or, when the quantity of coal obtained by Confederate ships is made a matter of complaint, and we find that a single United States vessel, within six weeks, contrived to procure from three British ports more than two-thirds of the amount ascertained to have been purchased within Her Majesty's dominions by all the Confederate ships. together during the whole course of the war, can we doubt that the Government of the United States is laboring under serious misapprehensions?"

In respect of the claims for compensation, Measure of Damages. the British Counter Case maintained that only those could be taken into account which had directly arisen from the capture or destruction, by one or more of the cruisers enumerated in the British Case, of ships or property owned by the United States or by citizens of the United States, and that the extent of liability of Great Britain for such losses could not exceed that proportion of them which might justly be attributed to some specific failure or failures of duty in respect of such cruiser or cruisers; that the arbitrators should, in determining these questions, take into account not only the loss incurred, but the greater or less gravity of the default itself, and all the causes which might have contributed to it, and particularly whether the loss was in whole or in part due to a want of reasonable activity and care on the part of the United States; that claims for money alleged to have been expended in endeavoring to capture or destroy any Confederate cruiser were not admissible; that claims for interest were not admissible; and that, if the tribunal should award a sum in gross, that sum ought to be measured by the extent of the lia.. bility which the tribunal might find to have been incurred by Great Britain on account of any failure or failures of duty proved against her.

American Case.

When, soon after its presentation at Geneva, Criticism of the the contents of the American Case became public from copies distributed in the United States and in England, it naturally became the subject of comment in the columns of the press. In the English journals the chapter on "unfriendliness "" was made the subject of

1 Papers Relating to the Treaty of Washington, IV. 4-7.