XI.

CONSIDERATION

OF THE

DUTIES OF GREAT BRITAIN, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, IN REGARD TO THE OFFENDING VESSELS, AND ITS FAILURE ΤΟ FULFIL THEM, AS TO EACH OF SAID

VESSELS.

We are now prepared for a definite application of the law and the facts, under which the determination of the Tribunal is to be made, to the question of the duties of Great Britain, in the premises of the Arbitration, and its performance thereof or failure therein.

The ample discussions of pertinent questions and principles of public and municipal law, to be found in the Cases and Counter-Cases of the two Governments, and subjected to comment in an earlier part of this Argument, it is not our purpose here to repeat or renew. shall better observe the requirements of the Argument

We

at this stage of it, by a brief statement of the propositions which should assist and control the judgment of the Arbitrators, in deciding the main issue of fact on which their award is to turn, that is to say, the inculpation or the exculpation of Great Britain in the matter of the of fending vessels.

PROPOSITIONS OF LAW.

Measure of International Duly.

I. The Three Rules of the Treaty furnish the imperative law as to the obligations of Great Britain in respect of each of the vessels that is brought under review. The moment that it appears that a vessel is, in itself, within the description of the first article of the Treaty, as being one of the several vessels which have given rise to the "claims generically known as the Alabama Claims,' it becomes a subject to which the three rules are applicable.

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II. This primary inquiry of fact, which simply determines that the jurisdiction of the Tribunal embraces the vessel, is followed, necessarily, by the further inquiry ot fact, whether or no the vessel, in its circumstances, falls within the predicament of either the first clause or the second clause of the first rule. If it does, the Tribunal has further to consider, whether Great Britain has used,

in regard to said vessel, the "due diligence" which is insisted upon by that Rule, and the failure in which inculpates Great Britain, and exposes it to the condemnation of responsibility and reparation therefor to the United States.

III. Whatever may be the scope and efficacy of the second Rule, and of the third Rule, in future or in general, for the purposes of the present Arbitration, the subjects to which either of them can be applied, in reference to the issue of the inculpation or exculpation of Great Britain, must be embraced within the limitation of the first article of the Treaty and, so connected with some or one of the several vessels which have given rise to "the claims generically known as the 'Alabama Claims.'" But in regard to any such vessel, the general injunctions of these two Rules furnish, in their violation, a ground for the inculpation of Great Britain, and its condemnation to responsibility and reparation therefor to the United States.

IV. It is not at all material or valuable, in its bearing upon the deliberations or award of the Tribunal, to inquire whether the obligations of duty laid down in the Three Rules, are commensurate with the obligations imposed by the "principles of International Law, which 'were in force at the time when the claims mentioned in "Article I [of the Treaty] arose." These Rules constitute the LAW of this controversy and of this Tribunal in its jurisdiction of it, by force of the twofold declaration, (1) that, "in deciding the matters submitted to the Arbitra"tors, they shall be governed" by them, and (2) that "in "deciding the questions between the two countries arising "out of those claims, the Arbitrators should assume that

Her Majesty's Government had undertaken to act upon "the principles set forth in these Rules.'

V. The true force of the subordinate provision that, besides the rules, "such principles of International Law, "not inconsistent therewith, as the Arbitrators shall de"termine to have been applicable to the case," shall govern them in their decision, is, necessarily, to introduce from the general doctrines of international law whatever may corroborate or increase the vigor of the rules, and their scope and efficiency, but to admit nothing, from such general doctrines, in reduction or disparagement of the Rules.

VI. An assent to these indisputable propositions, disposes of a very considerable part of the more remote argument of the Case and Counter-Case of Her Majesty's Government.

(a) The duties in respect of which the conduct of Great Britain, in fulfilling or failing to fulfil the same, is to be judged by the Tribunal, are, by the terms of the Treaty, authoritatively assigned as duties of Great Britain towards the United States, of international obligation. Not only does the Treaty declare that Great Britain was "bound" to the fulfilment of these duties, but it further declares that the Arbitrators should assume that Her Majesty's "Government had undertaken to act" in obedience to that obligation. All speculations, therefore, of a legal or practical character, presented in the Case or CounterCase, and turning upon the question of the duties here under judgment being duties of Great Britain to its own laws and its own subjects, and its accountability to the United States being only secondary and of comity, seem unprofitable to the present inquiry.

(b) The efforts of the 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 is in fault, whereever, in the functions of the state or their exercise, the failure in duty arose.

(c) So, too, the particular institutions or habits of the people of Great Britain, or the motives or policy of its Government in respect of commercial freedom, unrestricted activity, maxims or methods of judicial proceedure, limitations of prerogative, and similar internal arrangements of people and Government, cease to have any efficacy in determining the judgment of this Tribunal upon the fulfilment of, or default in, international duty. Domestic liberty, however valuable to, and in, a state, is not a warrant for international license; nor can its advantages be cherished by Government or people at the cost of foreign nations. Indeed, when a special obligation or particular motive induces and, in some sense, justifies, failure in international duty, the offending nation assumes the necessary amends and reparation to the foreign state. A notable instance of this is found in the course of the United States towards Great Britain, when the former had failed in what they admitted to be their international duty to prevent the outfit of French privateers, by reason of certain special relations to France. Compensation to Great Britain for injuries by the offending cruisers was conceded.